R v H (CA436/02) [2003] NZCA 431 (23 June 2003)

Last Updated: 10 December 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

_{CA 436/02}

THE QUEEN

v

_{H (CA436/02)}

Hearing: 18 June 2003

Coram: Keith J Fisher J

Rodney Hansen J

Appearances: K Raftery for Crown

P L Borich for Appellant

Judgment: 23 June 2003

_{JUDGMENT OF THE COURT DELIVERED BY FISHER J}

_Introduction

[1] Following a jury trial in the District Court at Manukau the appellant was found guilty and convicted of one count of indecent assault on a girl aged between twelve and sixteen years, one of indecent assault on a girl under the age of twelve and two of inducing a girl under the age of twelve to do an indecent act upon him. He was sentenced to a total of two years and three months’ imprisonment. He

_{appeals against conviction and sentence.}

R V H CA 436/02 [23 June 2003]

Factual background

[2] The complainants were two sisters aged thirteen and nine years respectively. In 1992 they lived in a common household with their mother and the 42-year old appellant, who was their stepfather.

[3] The thirteen-year old complainant gave evidence of an occasion when the appellant grabbed her from behind, pulled her towards him so that she was pressed up against his genitalia, and tried to insert his tongue into her mouth.

[4] The younger complainant gave evidence of an occasion when the appellant kissed her on the mouth, inserted his tongue into her mouth, grabbed her hand, placed it inside his underpants, and manipulated her hand around his penis. On another occasion the appellant grabbed her hand, placed it inside his pants, and made her move her hand around and rub him.

[5] All events occurred in 1992. At the end of that year the complainants’ mother broke off her relationship with the appellant. Ten years later he was interviewed by the police. He admitted that he might have inserted his tongue into the mouth of one of the girls on one occasion but otherwise denied the offences.

The trial

[6] At the trial evidence to the above effect was given by the two complainants. Their mother gave evidence of opportunity. A police officer gave evidence of the interview with the appellant when he made the above admission and denials. No evidence was called for the defence.

[7] At the outset of the trial the Judge made some opening remarks to the jury about trial procedure, appropriate juror conduct during the trial, the respective roles of the jury and other participants in the trial, and the onus of proof. Included in the opening remarks was an indication from the Judge that he intended to distribute copies of the transcript to the jury as the case progressed. He explained the process, and the manner in which the jury were to use the transcript, in the following terms:

The Court Crier is the other official there on my right. She looks after you as a jury during the course of the trial just as the security officer looks after the accused. When the evidence is given by the various witnesses, who will come forward to the witness box over there to my right, they will take an oath or affirmation just as you have done. The evidence will be recorded on a typewriter. It is not done in this immediate Court but in the building itself and copies of the notes of evidence, which is the printed form of what has been said, will become available from time to time. You will hear the clatter of the printer when the notes of evidence are printed out and made available. Copies are immediately given to me and the lawyers and I have made arrangements for the Court Crier during the breaks, or at suitable times, to have three copies of those notes of evidence put into folders, and they will be given to you in the jury room for your later reference if necessary.

The reason why we give you the notes of evidence is if there is any matter on which you want to remind yourself about later on about what a witness has said you can do that by reference to those notes of evidence. They will be checked from time to time. They are pretty accurate at they come out but if the lawyers, or if I see any inaccuracies in the notes, we will make sure they are drawn to your attention. If you also think when you have a look later that something has not been recorded accurately let us know and we will certainly attend to that because we want to make sure they are accurate.

When you have reference to those notes, if you need to later on, remember that in the course of giving evidence there is a three tier process of what happens. The witness is called. The lawyer who calls the witness will ask questions and the evidence that comes forward from that questioning is known as evidence-in-chief. The other lawyer then has the right to cross-examine the witness, to test the evidence if necessary. Sometimes there is no cross-examination. Often there is and then the first lawyer can come back in re-examination, after cross-examination, on matters which have arisen in that cross-examination part of the evidence recorded.

So if you are checking on a particular point to be fair make sure you check all parts of the evidence, the evidence-in-chief, the cross-examination and the re-examination on a particular point because there can be different factors and emphasis given during the course of the evidence that you need to be aware of. You can make your own notes also if you wish but do not let that process distract you from sitting back, relaxing, observing the witnesses and making your minds up about who you believe or who you do not believe, because where there are differences in the evidence and conflicts it is for you as a jury, of course, to rationalise and to determine and to decide who you believe and who you do not believe. To do that you need to be aware of the witnesses and the way they come across to you.

Also my ruling is you keep those notes of evidence in the jury room. Do not bring them back into Court because that could be distracting for you if you are having a look at them in the Court while the trial is going on.

Now it is important to realise that because you are going to get a transcript does not mean you do not have to pay close attention to the evidence and it is vitally important that you do that. The transcript, as I said before, is there to clear up any question of detail later on, and it is the evidence that is given by the witnesses in the witness box that is the actual evidence. So it is important to be aware of what people say. Also do not take those notes of

evidence or copies of transcript away with you. Leave them in the jury room as I am sure you will.

[8] That process was duly followed in the course of the trial. Three copies of the transcript were provided to the jury during the adjournments. At one point in the trial, during the examination in chief of the complainant’s mother, the transcript records the following:

Were you aware at all during this period that anything was happening with the girls? .... No.

MR BORICH: Sir –

THE COURT: Speculation.

MR BORICH: Yes I do not know whether that is relevant, Sir.

THE COURT: You do not have to answer that.

MR BATES: Sorry, yes.

EXAMINATION CONTINUES BY MR BATES

When did you first learn about these incidents which have now been alleged? .... Ah, last October.

And that was in the course of a family argument – can you describe it as that of an argument which had developed? .... Yes.

What was the first thing that came out – who told you? .... [C, C] did. She just broke down and said I hadn’t been there for her.

THE COURT: Just pause a minute. I take it that this is not in the nature of a recent complaint?

MR BATES: It probably is outside there. My friend –

THE COURT: I am sure it is. There is elements of hearsay, that is all.

MR BATES: Yes. My friend –

THE COURT: Well it is different in cross-examination, this is evidence in chief, hearsay evidence inadmissible.

MR BATES: Yes, I do not want to pursue the matter really.

THE COURT: Well you cannot, hearsay evidence is inadmissible.

MR BATES: In the sense Sir, that this could be regarded in some circumstances as –

THE COURT: Well clearly not.

MR BATES: It is complaint evidence, but I do not think it is of any great significant in the sense –

THE COURT: Thank you.

EXAMINATION CONTINUES BY MR BATES

On this night, did you become aware generally of what had happened with

[C] – what was alleged to have happened? .... Yes.

And with [O], when did you become aware that there was an incident alleged in relation to that – just when is all I .... She told me –

THE COURT: You cannot say what someone has said, just listen carefully to the question.

MRS [M]: The same night I was made fully aware that something had happened to [O] as well.

EXAMINATION CONTINUES BY MR BATES

Can I just ask you this, whose decision was it that this matter should then be brought to the attention of the police.

LEGAL DISCUSSION

EXAMINATION CONTINUES BY MR BATES

As a result of what happened was there a decision to go to the police? .... Yes.

At any stage when you were out for example at hockey or at work and you came home during the early part of the evening, which might be perhaps well before 10.00 o’clock where were the children and the accused? ... On some occasions [O] was still up sitting on the couch, and when I got home she went off to bed.

And where would she be, we have a little plan here which I want you to have a look at.

THE COURT: I cannot see the relevance of this either, Mr Bates, not exactly.

MR BATES: Well it does have some relevance Sir in that we’ve heard from

–

THE COURT: Well do you want to address me in chambers about it, but I just can’t see the relevance at the moment. We know what happened in relation to [O] but it doesn’t seem that this is where she might have been in the lounge is relevant.

JURY AND WITNESS RETIRE: 2.52 PM CHAMBERS MATTER HELD IN CLOSED COURT LEGAL DISCUSSION

JURY AND WITNESS RETURN: 2.54 PM WITNESS UNDER FORMER OATH

1455

MR BATES: I have no further questions CROSS EXAMINATION: MR BORICH NIL

RE-EXAMINATION: MR BATES NIL

WITNESS EXCUSED JUDGE ADDRESSES JURY JURY RETIRE: 14.55 PM

CHAMBERS HEARING IN CLOSED COURT LEGAL DISCUSSION

MR BORICH MAKES APPLICATION FOR s 369

PASSAGE FROM ACCUSED STATEMENT TO BE OMITTED COURT ADJOURNS: 3.04 PM

[9] The evidence was completed on the first day. Prior to closing addresses on the following day counsel saw the Judge in the absence of the jury. Defence counsel drew the attention of the Judge to the passages just quoted and submitted that they were prejudicial to the defence.

[10] In the course of his summing up the Judge said this:

I now turn to the third heading which is some matters of evidence that have arisen out of the way the trial has progressed. You have heard read out the statement made by the accused to the Detective and you will have that with you in the jury room to consider. Just a little point I wanted to make, when you look at the evidence and the recording of it at page 32, it is not actually the evidence that was given but it was typed as up legal discussion. Generally if you look at the notes there is talk about legal discussion and nothing more but here it went a bit further and said Mr Borich, that is the accused’s Counsel, makes application under Section 369, passage of accused’s statement to be omitted. Don’t worry about that at all. You will remember that I talked in my initial remarks to you that I might need to see

the lawyers in chambers in your absence, but in the presence of the accused to make sure that only properly admissible material is placed before you.

I saw the lawyers about the statement and it was agreed that there was something in that that was just totally irrelevant to the facts at issue. That is what that passage relates to. You haven't got that in front of you because it is not relevant so forget about it. Certainly don’t speculate about what might have been in there because I can assure you that is not relevant to the trial and you only have properly admissible matters in front of you to consider. So that is really a non-issue but I wanted to mention it by way of completeness.

[11] At the close of the Judge’s summing up defence counsel again raised matters concerning the transcript – the Judge’s failure to refer to the opportunity for the jury to have evidence read back to them, the need to consider all relevant passages from the transcript in relation to any particular point, and his objection to the jury receiving the passages from the transcript quoted above.

[12] The Judge declined to redirect the jury on these matters. In his view the fact that the jury already had the transcript removed the point of telling them that it could be read back. He considered that in his opening he had already adequately covered the need to consider all relevant passages of evidence in relation to any given point. He also considered that the quoted passages in the transcript recorded no more than that which had taken place in the presence of the jury in any event.

Appeal against conviction

[13] The first ground of appeal was that no opportunity was given to counsel to make submissions on the question whether a copy of the transcript should be given to the jury and that no reasons were given for doing so.

[14] At some stage the permanent members of this Court may think it appropriate to suggest more detailed guidelines for the distribution of transcripts to juries. In the meantime it is already well established that whether that step is taken is a matter for the trial judge’s discretion: R v McLean [2001] NZCA 233; [2001] 3 NZLR 794, paras 41 & 42 and R v Haines (CA 132/01, 5 December 2001, paras 26-36. It might well be desirable to consult counsel before providing copies of the transcript if the circumstances or proposals are in any way out of the ordinary. But it is not the case that the judge

must consult counsel before adopting procedures which are common-place and which could not have any significant impact upon the fairness or otherwise of the trial. Nor is it necessary to give reasons for decisions made on matters of that nature. This was a very simple case. The course followed by the Judge could not be regarded as unusual. Opportunity for submissions followed by reasons were not required.

[15] Mr Borich submitted that it was inappropriate to distribute the transcript to the jury in a case which was so short and simple. On that aspect the Law Commission Report (NZLCR 69 Juries in Criminal Trials February 2001) para 351 said this:

While it is tempting to say that the notes of evidence need only be provided in lengthy or complex cases, in our view if notes are to be provided at all they should be provided in all cases. Juries require evidence to be read back in many trials, not just lengthy or complex ones. Moreover, although length can be quite easily determined, it is difficult to predict which cases a jury will or will not find complex, and the threshold will in practice be difficult to draw. In simpler cases, the jury is unlikely to need to use the notes but should be provided with them in case.

We agree.

[16] The second ground of appeal was that the transcript was given to the jury as the case progressed rather than immediately prior to their retirement to consider their verdict. Mr Borich pointed out that the Law Commission suggested provision of the transcript at the commencement of the jury’s deliberations except in longer or more complex cases. He submitted that later distribution would have left more opportunity to notice that it included objectionable material; would have allowed better opportunity to consider whether distribution was appropriate; would have made an explanation as to the use of the transcript more contemporaneous; and would have avoided any temptation for the jury to concentrate on what had previously been said rather than on the oral evidence currently being given.

[17] At least in cases as short and simple as this one there may well be much to be said for distribution after all the evidence has been completed rather than during the giving of the evidence. However, we would be slow to suggest any hard and fast rules in that respect. On appeal what matters is whether the early distribution caused any miscarriage of justice. We turn to the specific points raised in that regard.

[18] Mr Borich submitted that the passages in the transcript quoted above included prejudicial and irrelevant material. He objected to the inclusion of legal discussion and rulings on the propriety of questions and answers given in evidence and the successful defence application to exclude a portion of the appellant’s statement. We agree that the better practice is to exclude such matters from the distributed transcript. In this particular case, however, we can see nothing in the transcript that could have materially prejudiced the defence. The fact that the mother was asked what her reaction would have been had she been made aware of the complaints, and was stopped from answering, could scarcely have resulted in any inference adverse to the accused. The same is true of the ruling that the jury should not hear evidence concerning the circumstances in which the incidents came to the attention of the complainant’s family and authorities, and the exclusion of an unknown passage from the accused’s statement. In his summing up the Judge went out of his way to emphasise the irrelevance of the exclusion from the appellant’s statement. No miscarriage of justice could have occurred.

[19] The final ground of appeal against conviction was that there was no adequate direction as to the way in which the jury should use the transcript. Mr Borich pointed out that although the direction on that topic was provided in the Judge’s opening statement, it was not repeated in the summing up. Given that the jury retired to consider its verdict on the day after the Judge’s opening statement, we do not think that the jury would have forgotten what he had said in that regard.

[20] Mr Borich further pointed out that when speaking of the need to consider all relevant passages in the evidence, the Judge omitted to include the accused’s statement as one of the relevant sources. We do not think that the jury could have overlooked the statement given his repeated references to it in the summing up.

[21] All grounds for appeal against conviction fail.

Appeal against sentence

[22] In his notes on sentence the Judge recorded that ten years after the incidents in question the two complainants continue to suffer the psychological scars; that the

appellant had had prior convictions for assaults in 1975, 1985 and 1986 (in fact there were two more in 1992); that there was low motivation to address behavioural problems; that over the ten years since the offending the appellant had shown an excellent work ethic; that he and his new partner had had two children; and that he was now a devoted father with a successful family life.

[23] As aggravating factors the Judge noted the elements of violence inherent in that type of abuse, involving as it did some measure of coercion; the harm caused to the victims; the abuse of trust; the youth of the victims; the fact that there were three separate incidents involved; and the fact that two of the offences had involved skin to skin contact between the younger victim and the appellant’s penis. (As to that detail we note Mr Borich’s point that with one of the incidents the evidence of skin to skin contact was arguably equivocal). The Judge saw few, if any, mitigating factors but noted that he appeared to have turned his life around since the offending .

[24] The Judge took as his starting point “three years, or perhaps a little more”. Although he found it difficult to see any particular mitigating factors he imposed a total sentence of two years, three months. That was broken down into two years, three months on one of the charges of inducing an indecent act by a girl under the age of twelve years, and concurrent sentences of two years, twelve months, and nine months, on the remaining charges of inducing an indecent act by a girl under twelve, indecent assault on a girl under twelve, and indecent assault on a girl between twelve and sixteen.

[25] In support of the appeal against sentence Mr Borich submitted that the Judge had given too much weight to the aggravating factors and not enough to the mitigating ones. Mr Borich considered the mitigating factors to be the lack of recent previous convictions, improved circumstances since offending, positive pre-sentence report, low re-offending risk assessment, and a supportive letter from the appellant’s wife. She described the happy family life she and the appellant had since built together and described him as a person who had an excellent work ethic and who was “very caring and protective” of their daughters.

[26] Mr Borich compared the present case with others including R v Meredith- Blyde (CA 245/95, 19 July 1995) (two charges of indecent assault on girl under twelve on sisters aged eight and ten years, sentence of one year), R v S (CA 538/99,

28 March 2000 and 17 April 2000) (seven charges of various sexual counts including sexual violations, representative charges, two sisters aged six and seven years, representative counts over two years including oral sex and masturbation, guilty pleas, two and a half years reduced to 18 months with leave to apply for home detention), R v Carruthers (CA 401/94, 10 April 1995) (two charges of indecencies on two sisters aged eight and ten years involving touching clothing over vagina and masturbation involving ejaculation, two years reduced to 18 months) and R v Robinson (CA 304/95, 4 October 1995) (charges of indecent assault, inducing indecent act and sexual violation in respect of two nieces aged ten and thirteen years, vaginal and penal touching over six weeks and one digital penetration, three years reduced to two years).

[27] Mr Raftery referred to three cases involving higher sentences: The Queen v Ngahere (CA 99/02, 17 September 2002; two charges of indecent assault in respect of 41 year old complainant, four years reduced to two and a half years), R v Bradley (CA 368/97, 25 February 1998; serious indecent assault on comatose complainant, three years) and Engu v R (CA 478/93, 15 March 1994; three and a half years upheld for one count of indecent assault and another of inducing an indecent act on five year old complainant, repetitive offending over a period of eight months, plea of guilty).

[28] That far from complete survey of precedents illustrates the oft-repeated comment that indecent assault cases vary widely in their culpability. We are bound to say, however, that on the whole the cases cited by Mr Raftery were more serious than the present one and that the majority of decisions we have considered suggest a lower level for cases of the present type. We think, too, that in the present case insufficient regard was paid to the fact that over a lengthy period since the offending the appellant had established a successful new life free of offending of this kind. Taking those considerations into account, a total sentence of two years three months was too high. Eighteen months would have been appropriate.

[29] Having considered the victim impact reports, the fact that the complainants and the appellant live in different parts of the country, and the nature of the offending, we think it appropriate that leave be given to apply for home detention.

Result

[30] The appeal against conviction is dismissed. The sentences of two years, three months and two years on counts three and five respectively are quashed. Sentences of 18 months are substituted on each of those charges. The sentences on counts one and two are confirmed. All sentences are concurrent. Leave is reserved to apply for home detention.

Solicitors:

Crown Solicitor, Auckland

Rice Craig, Auckland