R V ROBIN NEIL WOLLAND [2003] NZCA 89 (3 June 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 437/02

THE QUEEN

v

ROBIN NEIL WOLLAND

Hearing: 27 May 2003

(Heard at Christchurch)

Coram: McGrath J

Doogue J

Panckhurst J

Appearances: D Ruth for Appellant

J A Farish for Crown

Judgment: 3 June 2003

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

Summary

[1]

The appellant was found guilty by a jury upon eight charges of sexual abuse upon a boy.In this appeal those convictions were challenged upon the basis that late and extensive amendments to the indictment occasioned a miscarriage of justice.Although we extend time for bringing the appeal it is in the event dismissed.Likewise an appeal against an effective sentence of five years imprisonment is dismissed.

Background

[2]	The appellant formed a relationship with and after time married the complainant’s sister.Thereby the appellant became a father figure to the complainant.There was extensive contact between the two, in the context of fishing, attendance at sporting events and overnight stays by the complainant at the home of his sister and the appellant.
[3]	The gist of the Crown case was that between June 1977 and June 1979 various indecencies occurred being essentially masturbation and oral acts.The complainant was born in June 1970 and was accordingly between seven to nine years over the timespan of these the first four counts in the indictment.The remaining counts charged escalating abuse in the period June 1979 to June 1982, when the complainant was between nine to twelve years.These were charges of anal indecent assault, induced sodomy by the complainant upon the appellant and sodomy committed by the appellant.
[4]	In the course of cross-examination at the trial defence counsel (not Mr Ruth) persistently challenged the complainant, his sister (by then the appellant’s former wife) and others in relation to the time-frame alleged in the indictment.For example both the complainant and his sister were pressed concerning when they first met the appellant.The sister accepted in cross-examination that she did so in September 1979 a few weeks before her eighteenth birthday (17 October 1979).It followed that the appellant did not meet the complainant until about Christmas of that year, when the latter was nine and a half years.
[5]	Moreover, the sister accepted that she and the appellant were married in March 1982, after which they rented a house at Heathglen Avenue.The complainant’s evidence of sodomy was closely linked to this property.He explained that his sister worked on Saturdays while the appellant, a shift worker, did not.Hence the opportunity for escalating abusive conduct existed at the Heathglen Avenue house.
[6]	With reference to the end date of the abuse the complainant was reasonably clear that at about the time he commenced high school he gathered the resolve to prevent any further acts upon him.Exactly when he commenced high school was not affirmatively established, but items of evidence supported the construction that it was February 1984.The complainant was then a little over thirteen and a half years.
[7]	The Crown case was incomplete when the Court rose on Friday, 9 November 2001.The following Monday the Crown called a new witness Mrs D.She was a woman aged 77 years who was the owner of the Heathglen Avenue property for about six years in the 1980s.By reference to a certificate of title Mrs D confirmed that she acquired the property in May 1981.Mrs D’s evidence continued that her first tenants were the appellant and the complainant’s sister.In cross-examination Mrs D confirmed that she had only been contacted by the police that morning and was solely reliant upon her memory in giving this evidence.
[8]	The evidence of Mrs D was significant.It enabled the Crown to contend that there was a period of over two and a half years from mid 1981 to about February 1984 during which the sodomy-related offending occurred.An appreciable time span was necessary given the evidence of the complainant that the abuse he suffered was systematic and progressive over a considerable time until he went to high school.However, the indictment alleged that the overall offending occurred between June 1977 and June 1981, that is while the complainant was between seven years to the time of his twelfth birthday.Given the evidence of the complainant’s sister (concerning when she met the appellant), the evidence of the new witness (as to Heathglen Avenue) and the circumstantial evidence as to when the complainant commenced high school the Crown wished to move the commencement date back by almost two and a half years and the termination back about twenty months.

The amendment application

[9]	This was made at or about the conclusion of the Crown case.The prosecutor sought to substitute a new time-frame commencing on 17 October 1979 (the eighteenth birthday of the complainant’s sister) and ending on 1 February 1984 (when the complainant commenced high school).Defence counsel opposed the application both with reference to its lateness and its extent.
[10]	Hardly surprisingly the trial Judge viewed the application with some concern.In the end result he allowed it, but only after expressing his views in plain terms.After reviewing the state of the evidence the Judge continued:

[17]When I came to court this morning, my provisional view was that the prosecution case was such a shambles that the amendments which I knew would be sought by the Crown lay outside what could properly be permitted at this stage of the case.I thought it was highly likely that I would have no choice but to decline the amendments with the result that at least the first four counts would have then been dismissed under s 347.I also thought it highly likely that there would be a similar result in relation to counts 5-9 because of the difficulty fitting what was alleged by the complainant into the timeframe stipulated given the evidence as it stood last Friday.

[11]	With reference to the merits of the application the Judge referred to s335 of the Crimes Act and continued:

[12]The Crown says there has been no prejudice to the accused because he knows what the actual dates were and, having regard to the way in which cross-examination was conducted, has plainly made investigations into those dates.Further, at a very early stage in the cross-examination of the complainant by counsel for the accused, the Crown signalled an intention to amend the indictment if the evidence as to the externalities was as counsel for the accused was putting to the complainant.

[13]The application was opposed by Mr Davis, for the accused.He said that the defence had been run on the basis that the Crown allegations in respect of counts 1-4 was an impossibility.He was, however, not particularly specific as to how he would be prejudiced by an amendment in a sense relevant to the current exercise.

[14]Obviously if the complainant had been re-briefed to address his allegations to the externalities as they really were, he would have been exposed in cross-examination to a challenge to his notional re-briefed evidence given what he told the police.But that, in reality, is pretty much what happened.The complainant did recognise that if he did not meet the accused until 1979 then the offending occurred later than he had initially recalled.It is plainly open to counsel for the accused to make a strong address to the jury based on the significant differences between what is now alleged by the Crown and the complainant’s initial allegations which he repeated in evidence.

[15]In relation to counts 5-9, Mr Davis’ position was that the complainant had asserted offending which stopped when he was 12.In other words, his real complaint seemed to be that the end date now stipulated for by the Crown went beyond the complainant’s evidence.

[16]There are two points as to that.If the offending stopped when the complainant was 12, it could have continued until 23 June 1983.But, in fact, my reading of the complainant’s evidence was that he never accepted that the offending necessarily stopped when he was 12.Nor was he prepared to confine the offending to any particular calendar year.Rather his position was that it stopped when he was 12 or 13 and at about the time that he was about to go to high school.In this sense, my view is that counts 5, 7, 8 and 9 never reflected the evidence which the complainant was giving or was likely to give.

For these reasons he found that there was “a variance between the proof and the charge(s)” as framed:s355(1).Further that the accused had not been “misled or prejudiced in his defence by such variance”:s355(2).

[12]	However, the Judge added some concluding observations in these terms:

[19]This situation should not have been allowed to develop.Very few adults, in my experience, can, when interviewed effectively cold as the complainant was in January this year, organise their memories into an accurate sequence or fit those memories into accurate associations with externalities such as dates and places.It would be a very rare case of this type (where historical sexual abuse is alleged) in which the police could rely simply on the memory of the complainant without going to the primary facts and documents.Plainly there should have been an investigation into where the accused and the complainant’s sister were living at various times.Plainly there should have been an investigation into where the accused was working at various times.I suspect there will be further difficulties for the Crown in relation to these aspects of the complainant’s evidence.Plainly evidence as to when the complainant started high school should have been ascertained right from the outset.That there should have been a full investigation of this case is particularly evident given that the complainant had a serious accident in 1998 which has significantly compromised his intellectual ability.It was even more so because the evidence at the preliminary hearing showed that it was highly likely that the complainant’s account of events was adrift, by a matter of years, from the reality.

[20]So with considerable irritation that such a shambles has been allowed to develop, I propose to make the amendments which the Crown seeks.

[13]	In the result the amended indictment contained eight rather than nine counts, of which one was an alternative.Counts 1-4 alleged indecencies committed between October 1979 and June 1982.Counts 5-8 charged indecent anal touching and sodomy between May 1981 and February 1984.
[14]	The appellant gave evidence in his own defence.He denied any untoward conduct towards the complainant.Such denial was supported by evidence relevant to time, place and circumstance designed to show that there was no opportunity for him to commit acts of the kind alleged by the complainant.Two supporting witnesses were also called by the defence.
[15]	The jury found the accused guilty as charged.Subsequently he was sentenced to five years imprisonment on each charge.

Conviction appeal

[16]

Before we turn to the sole ground advanced in support of the conviction appeal, it is convenient to refer to an affidavit sworn by trial defence counsel.It described the relevant sequence of events, as we have already done.Counsel confirmed that following the amendment ruling there was no application on behalf of the appellant for an adjournment.With reference to the evidence of Mrs D counsel deposed:

My recollection is that I felt that the evidence from Mrs D was lacking in detail, somewhat confused and unlikely to be accepted by the jury.

[17]

The balance of the affidavit was devoted to a description of counsel’s dealings with Mrs D who, subsequent to the trial, expressed concern as to the accuracy of the evidence which she had given.This is best captured in a letter dated 19 November 2001 addressed to trial counsel and which was annexed to the notice of appeal.In the letter Mrs D said that she had been contacted by phone and taken to court about an hour and three quarters later.She obviously considered that she had little time within which to gather herself and was aggrieved that she was not told in advance of giving evidence that the appellant claimed he had not moved into Heathglen Avenue until early 1982.Had she known of that she might not have been confident in giving evidence that the appellant and the complainant’s sister were her first tenants after she acquired the property in May 1981.The letter included:

It is quite possible I had a short stay tenant before them.

[18]

Mr Ruth made a single focused submission in support of the appeal.He did not contend that the Judge had wrongly exercised his discretion in allowing the amendments to the indictment.In other words it was accepted that the case was one which involved variance between the proof and the charges as framed.Likewise counsel did not challenge the finding that the accused was not misled or prejudiced in his defence by the amendments.

[19]

Rather, the argument was one based on s 335(5) of the Crimes Act:

If the Court is of opinion that the accused has been misled or prejudiced in his defence by any such variance, error, omission, or defective statement as aforesaid, but that the effect of his being misled or prejudiced might be removed by adjourning or postponing the trial, the Court may in its discretion make the amendment and adjourn the trial to a future day in the same sittings, or discharge the jury and postpone the trial to the next sittings of the Court, on such terms as it thinks just.

[20]	While accepting that trial counsel had been unable to articulate any particular prejudice in opposition to the application, Mr Ruth submitted that the amendments sought were fundamental in nature.They represented a major shift of ground in relation to the Crown case. The essential basis of the defence was the discrepancy between the dates in the indictment and defence evidence as to the timing of relevant events and happenings.
[21]	In these circumstances counsel submitted that where amendments were sought so late in the day “there must certainly be a risk of prejudice to an accused” such that it was incumbent upon the trial Judge to adjourn the trial pursuant to s 355(5), even of his own volition.
[22]	The letter written by Mrs D was relied upon as indicative of the risk of prejudice.In general by the time it was closed the Crown case was in a state of flux, additional evidence had been adduced, amendments were sought and eventually granted.Thereby the complexion of the case changed to such an extent that either an adjournment of the trial or the discharge of the jury and an order for a retrial was necessary.

Discussion

[23]	We are not persuaded that the decision to amend the indictment and proceed with the trial occasioned the risk of a miscarriage of justice.We agree with and endorse the observations of the trial Judge concerning the inadequacies in the investigation and preparation of the case for trial.Such should never have occurred.
[24]	But in the final analysis the case was one which turned on the credibility of the complainant and the appellant in particular.The former described in considerable detail a course of abuse over a significant period until the time he commenced high school.His evidence as to when the abuse had occurred was significantly discredited by cross-examination.Nonetheless the jury were satisfied as to the truthfulness of the complainant’s account, so much so that they returned guilty verdicts on all counts.
[25]	The essence of the appellant’s evidence to the jury was his denial of the offending.The detail he supplied as to time, place and circumstance was supportive of the denial, but was not the “whole basis” of the defence as was submitted.Plainly it was the jury’s rejection of the appellant’s evidence which was decisive of the outcome, regardless of the fact that the time frame as originally asserted by the Crown was discredited at trial.
[26]	We do not regard the present as a case where it was incumbent upon the Judge to adjourn the trial much less discharge the jury and order a retrial.There may be cases where a trial Judge must on account of amendment take one or other of those courses in order to ensure a fair trial.But it will be a rare case where this initiative lies with the Judge and not with defence counsel.Here the election of experienced trial counsel to not seek an adjournment must, we think, be determinative.
[27]	Indeed the impression created from a reading of the evidence and the trial rulings is that counsel made a deliberate and tactical decision to proceed.The Crown case had been discredited at least in relation to the dates alleged in the original indictment.The trial Judge had shown his hand particularly by some questioning of the officer in charge of the case concerning the failure to adduce evidence of milestones to which the complainant’s evidence could be referenced.The date amendments to the indictment were before the jury.The situation of the trial was such as to suggest it was unlikely the defence would ever be in a better position.
[28]	It is necessary to note that the appeal was not advanced on the basis that the evidence of Mrs D was mistaken.The possibility of error on her part was raised in the letter annexed to the notice of appeal.However, no application to adduce fresh evidence was made.In any event this issue must be kept in perspective.Mrs D said that the occupancy of Heathglen Avenue commenced in mid 1981 whereas the appellant said about March 1982.Even on the basis of the latter date there remained a period of one year ten months within which the offending at that address could have occurred.

Sentence appeal

[29]	In imposing the sentence of five years imprisonment the Judge referred to a number of features of the case.These included that after the offending stopped the complainant and the appellant remained in contact until 1999 before their relationship broke down.The Judge considered that until the complainant was well into his 20s the appellant continued to be his mentor.
[30]	With reference to adverse effects upon the complainant the Judge considered the case had a complicating feature in that the complainant was involved in a serious accident in 1998 which left him with head injuries.The Judge was therefore less than confident that he could assess the impact of the offending on the basis of what he saw of the complainant in the witness box.There was, however, evidence that the complainant was “a very troubled young man both as a teenager and in his 20s”, but the issue of cause and effect remained a difficulty.
[31]	The appellant was aged 46 at the time of sentencing.He had no previous convictions, a sound work history and health difficulties associated with a back problem.There was no acknowledgement of guilt and therefore no indication of remorse.
[32]	With reference to the offending the Judge regarded the sodomy conviction as the most serious.It involved a considerable abuse of power and trust, as indicated by the major difference in age between the appellant and the complainant.Although consent was not an element of the offence the Judge considered that the acts of sodomy occurred when the complainant was only twelve or thirteen years and that, therefore, they were not far removed from rape.The mitigating features were that the offending stopped when the complainant gained the maturity to make it clear to the appellant he would no longer comply.Since then, for a period of about eighteen years, the appellant had got on with his life and not come to the notice of the law.
[33]	A starting-point of six years was adopted.From this the Judge made a reduction of one year to reflect the appellant’s good character over the many years since the offending ceased.
[34]	Mr Ruth submitted that although the starting-point of six years was within the available range, the allowance made for good character was insufficient.The appellant suffers from a chronic back condition.The assessment in the pre-sentence report that he was at high risk of further offending was challenged on the basis that there was nothing to suggest the commission of offences since 1984.If due allowance was given for these features, counsel submitted, a deduction of eighteen months to two years from the starting-point would have been appropriate.
[35]	We are not persuaded that the sentence arrived at in this case was beyond the appropriate sentencing range.The Judge was right to make allowance for the period of about eighteen years during which the appellant had not further offended.Such was in accord with the observations of this Court in, for example, R v Carruthers CA401/94, 10 April 1995 in which Hardie Boys J in delivering the judgment of the Court said:

... where in the years that have intervened the offender has demonstrated that he has overcome his earlier proclivities, and has settled into a normal and law-abiding life, that fact must be recognised.For events have shown that one of the objectives of sentencing, deterrence of the specific offender, is unnecessary.The man to be sentenced today is not the same man who committed the offences.Moreover, the interests of a new family unit, of other children, may need to be considered.

All this is well recognised.In Canada, an informative case is R v D.E.S.M. (1993) 80 CCC (39) 371;while there have been several reported cases in England, R v Tisobeing one, and others include Murphy (1990) 12 Cr App R (S) 530 and U (1992) 13 Cr App R (S) 530.This Court has refrained from formulating any all-embracing principle, but in appropriate cases has reduced what would otherwise have been a proper term of imprisonment:see for example R v B (1992) 8 CRNZ 176, R v Edwards (1994) 12 CRNZ 302.In the most unusual circumstances of R v Stephens (1991) 7 CRNZ 347 a non-custodial sentence was imposed.But such a course could not generally be justified, even when a relatively long period of time has gone by.For the general deterrence and denunciatory aspects of sentencing will still have relevance.

[36]

A balance must be struck between the needs of deterrence and denunciation on the one hand and the requirement to take into account the present character of the prisoner on the other.In our view the sentencer in this instance achieved that balance in the reduction which he adopted. Afterall this was not a case resolved by guilty pleas.It is in that situation, where there is both evidence of good character over a significant time coupled with acknowledgement and remorse, that a major discount may be appropriate.

[37]

We are also influenced by the circumstance that, if anything, the starting-point adopted was perhaps benevolent.Sodomy committed upon a boy aged twelve or thirteen years is a very serious offence.Here the Judge did not treat the offending as akin to rape, that is as non-consensual, when that construction was we think open on the evidence.

Solicitors:

Crown Solicitor, Christchurch