WIRA Abel Jaye v R [2004] NZCA 273 (12 November 2004)

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WIRA Abel Jaye v R [2004] NZCA 273 (12 November 2004)

Last Updated: 24 November 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA29/04

THE QUEEN



v



ABEL JAYE WIRA

Coram: McGrath J
Hammond J
William Young J

Counsel: J W Watson for Appellant
T Smith for Crown

Judgment: 12 November 2004

(On the papers)

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1]	Mr Wira was convicted of abduction, indecent assault, sexual violation by unlawful sexual connection, and sexual violation by rape at a trial in the High Court presided over by Nicholson J. The Judge sentenced the appellant to 12 years imprisonment. He has appealed against those convictions. Initially he appealed also against his sentence but he has since has abandoned that aspect of his appeal.
[2]	Mr Wira’s appeal 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 the members of the Court who have conferred and agreed upon this judgment.

Background

[3]	The complainant, an 18 year old woman, was hitchhiking along State Highway 1 north of Whangarei early in the morning of 22 March 2002. The appellant, who was driving north, stopped and picked her up. She told him she was travelling to Kerikeri. The complainant then fell asleep in the car and awoke to find that the vehicle was north of Kerikeri and she asked the appellant to turn around towards it. On the way he stopped the car three times saying that he had problems with it. On the third occasion, according to the complainant’s evidence, the appellant began making sexual advances towards her which she rejected.
[4]	At one point she picked up her bag and tried to get out of the car but the appellant leaned over and locked the door on the passenger side. The complainant told the Court in her evidence that she felt she had no chance against the appellant once she realised what was going to happen. She pleaded with the appellant not to do anything. She then pretended to faint and tried to make her body heavy and floppy to hinder his advances. The appellant removed the complainant’s clothes, except for her bra, and then he digitally penetrated her. He fondled and then licked her breasts and her neck and face area. Finally he unzipped his pants and had sexual intercourse with the complainant.
[5]	The appellant then resumed driving south towards Hikurangi with the complainant alongside him still feigning unconsciousness. He stopped in Hikurangi, where she got out of the car and escaped by running down the road and flagging down a motorist. The motorist took her to the Whangarei police station where she made a complaint.
[6]	The appellant gave evidence at the trial, his version of events being that he had stopped to give the complainant a lift and taken her to a house at Springs Flat which belonged to a friend. He said that sexual activity had taken place between them there, including digital penetration but not full sexual intercourse.
[7]	In addition to the charges of which he was convicted by the jury the appellant was acquitted of further charges first of sexual violation by unlawful sexual connection arising from instances said to have occurred south of Kerikeri on the roadside and secondly of robbery of the complainant. He was also acquitted of a further incident of sexual violation by rape, said to have occurred on a driveway somewhere between Kerikeri and Paihia. Clearly the jury was not persuaded beyond reasonable doubt that these allegations of subsequent offending had been proved. But the jury did convict him on charges concerning earlier events that day rejecting the appellant’s account.

Grounds of appeal

[8]

There are two grounds of appeal advanced in the written submissions made by Mr Watson for the appellant. Both concern the Judge’s direction to the jury. The first ground is that there was a misdirection on the proper use of the evidence by the jury as it related to each charge. The second ground is that the Judge did not give a proper direction concerning the evidence given by the appellant at his trial. The two points are said separately and together to have created a miscarriage of justice. A third ground of appeal relating to the length of the jury’s deliberations has been abandoned.

Discussion

[9]	The Judge’s direction to the jury concerning the need to relate evidence to individual charges was at para [17] as follows:

As you are aware, there are seven charges or seven counts in the indictment. They are separate charges. For reasons of efficiency, common-sense and convenience all the charges are being tried together at the one trial, but the evidence against the accused on each charge or relating to each charge must be considered separately. It would be wrong to bolster up the case on one charge by evidence which relates to another, or reason that if an accused is found guilty or not guilty of one charge, then he must similarly be found guilty or not guilty of another. However, much of the evidence that you have heard is relevant to all charges. That is, the background evidence as to whether Mr Wira drove (the complainant) north of Hikurangi as she alleges and you may feel that that is a pivotal element of evidence. Do you accept, proved beyond reasonable doubt, her evidence that she was, in fact, driven north of Hikurangi in the way that she says and that the events thereafter happened to her? That is evidence which would be common to all counts because it would relate to the context in which it is alleged that each offence was committed.

[10]	This direction makes it clear that the jury should approach the evidence on each count separately. Mr Watson’s complaint, however, concerns the effect of the following direction earlier in the summing up in paragraph [7]:

It is a matter for you, but I suggest that you should resort to the transcript only if you will have a real doubt about exact words that a witness said, otherwise there would be a danger for losing, as we say, the image of the wood for the trees and spending time checking details instead of concentrating upon the bigger picture.

[11]

Counsel takes issue with the invitation to the jury to concentrate on "the bigger picture" and not to spend "time checking details". He says the Judge gave a similar invitation when directing the jury as to how it should deal with the evidence given by the appellant. That direction is set out later in this judgment. As Ms Smith contends in her written submissions for the Crown, however, the reference at para [7] to the need to consider the bigger picture is specifically directed to the jury’s use of the trial transcript. In our view it would not have conveyed to the jury that it was unnecessary to separately consider the elements of each of the charges and to have regard to the evidence accordingly when considering each charge. Nor would the jury have been misled by the subsequent reference to the need when dealing with evidence given by the appellant to examine all the evidence relating to each charge, before deciding whether the Crown has proved the essential elements. That passage cannot be read in isolation from the direction in para [17] which is clear and retains its prominence in the summing up.

[12]

Finally on this point Mr Watson submitted that the Judge should have directed the jury as to the purpose and relevance of the evidence and the manner in which it should be applied, when considering each count separately. He relied for that submission on a passage in Garrow & Turkington’s Criminal Law in New Zealand at para 340.5 in which the learned authors cite R v Pickering [1939] NZLR 316. In that judgment at p321 Myers CJ said:

There can be no doubt that the evidence or at least some of it referable to the second count (and particularly the woman named therein) is for certain purposes relevant and admissible on the charge contained in the first count and vice versa. But clearly the jury should be directed to consider each count separately, and they should also be directed as to the purpose and relevancy of the evidence, and as to the manner in which they should apply it and consider each count separately.

[13]	We accept that the standard directions must be given where evidence on one count is relied on by the Crown as supporting another count, but the Judge did this at para [17] when referring to the background evidence and its relevance. Occasionally it may be appropriate for the Judge to go on to direct the jury as to which particular parts of the evidence were relevant to each count but in most cases, including the present, that will be so clear as a matter of common sense that there will be no need for an express direction. As it happens, later in the summing up, Nicholson J addressed the issues the jury had to decide in a manner that would have provided them with assistance in separating out the particular evidence relevant to each issue. There is accordingly nothing in this further point. Overall there was no deficiency in the summing up and this ground of appeal accordingly fails.
[14]	Mr Watson submits in relation to the second ground of appeal that the summing up did not adequately caution the jury against determining that the appellant was guilty simply because it had rejected his evidence, if it were to do so. This argument involves a comparison between the direction given in this case and the approach favoured by this Court in R v McI [1998] 1 NZLR 696.
[15]	The relevant passages in the Judge’s directions in the present case were:

The fourth important point is what lawyers commonly call the onus and standard of proof and you have had this referred to you correctly by both counsel. The Crown has made the charge against the accused and therefore the Crown takes upon itself the onus of proving each of the essential ingredients of each charge. That onus rests on the Crown from the beginning of the trial to the end. There is no onus on an accused at any stage to prove that he is innocent. An accused is deemed to be innocent until proved guilty. An accused does not need to give or call evidence. In this case, Mr Wira has chosen to do so. But by doing so he takes upon himself no onus. The onus of proof still remains with the Crown.
Now, the standard of proof. The Crown must prove each essential ingredient of the charge beyond reasonable doubt before you may reach a verdict of guilty on that charge. To be satisfied beyond reasonable doubt means that you feel sure that the accused is guilty of that charge. If you do feel sure of guilt then it is your duty to find the accused guilty. If you are left with a reasonable doubt, that is, you do not feel sure, then equally it is your duty to find the accused not guilty.
The next point is the effect of the accused having given and called evidence. As I have already said, his giving and calling evidence does not alter the onus of proof which remains on the Crown at all stages. One of three situations may have arisen from Mr Wira giving evidence and calling evidence. First, you may accept the defence evidence on an essential element of the charge or charges. If so, you find not guilty. Second, the evidence may have created a reasonable doubt. If so, you would find him not guilty in respect of such an element in such charge. Third you may reject the defence evidence on an essential element, or you may be unsure whether to accept or reject the evidence. In either case, in this third situation, you examine all the evidence then to decide whether the Crown has proved all the essential elements.

[16]	The final paragraph of this direction is similar to that addressed in R v McI. Mr Watson’s point concerns the position if the jury is unsure as to whether to reject the accused’s evidence. As was said in the judgment of Keith and Tipping JJ in R v McI:

Logically, if the jury were unsure whether to accept or reject the accused’s evidence, this must, as the Judge said in his first proposition, have left them with a reasonable doubt leading to a not guilty verdict. The idea of the jury nevertheless going on to consider whether all the evidence proved guilt beyond reasonable doubt cannot logically follow (at 708).

[17]	The joint judgment then went on to suggest the following form of direction as appropriate for the circumstances:

If you accept the accused’s evidence on the key issues, you should acquit; if you consider there is a reasonable possibility the accused’s evidence on the key issues might be true, you should acquit; if you reject the accused’s evidence on the key issues you must not automatically conclude he is guilty, you must still examine all the evidence which you do accept and decide whether it establishes the accused’s guilt beyond reasonable doubt (ibid).

[18]	We accept that the Judge has given an incorrect form of direction and that he should have adopted the form put forward in McI. In considering the consequences of the direction he gave, however, what the Judge said concerning the defence evidence has to be read in the context of paras [10] and [11] of his summing up which are set out above. Para [10] emphasised that the onus of proof lay on the Crown even though the accused had given evidence. At [11] the Judge told the jury that if they did not feel sure of guilt it was their duty to find the accused not guilty. In light of these directions we are satisfied that the summing up brought home to the jury that they could accept and reject parts of the evidence.
[19]	It was not necessary for a further reminder following the direction in para [12] to be given that proof beyond reasonable doubt was required. Nor was it necessary as Mr Watson submitted to add the words "which you accept" to the direction to the jury to examine all the evidence if they had rejected the appellant’s account of events. The jury would not have lost sight of the fact that if they were left unsure as to whether the appellant was guilty on the basis of his evidence they had to acquit him. Overall the form of direction given in para [12], while incorrect, did not give rise to a miscarriage of justice.
[20]	The need for a McI direction is particularly acute where the rejection of the defence by the jury does not entail acceptance of the Crown case, as where the defence is based on an alibi. In such cases it is important that the jury is instructed to give separate consideration to the defence and Crown cases, as rejection of the defence cannot legitimately be used as additional support for an inference of guilt. Where the trial issue is a straightforward contest over credibility, it may be unhelpful for the jury to be directed to approach the evidence in two stages, first deciding whether to accept or reject the defence evidence and in the latter instance then considering whether other evidence proves guilt: cf R v Harron [1996] Cr App R 457. In some cases a simpler direction might be of more assistance to the jury. We do not, however, see any risk of jury confusion in using the McI direction in such a case, and its use, accordingly, cannot result in a miscarriage of justice.
[21]	In this case, the trial defence was that the appellant had taken the complainant to a flat where consensual sexual activity had occurred. The jury’s rejection of that story did not mean that all the complainant’s allegations about what happened in the car were true. It was still necessary for the jury to consider whether the evidence proved each charge beyond reasonable doubt. So in this case it was desirable that the McI direction was given. While the Judge instead gave an incorrect direction the resulting conviction is not unsafe because, for the reasons previously discussed, the correct position was adequately brought home to the jury.
[22]	For completeness we add that we also agree with a submission advanced by Ms Smith that a lies direction was not required in the circumstances of this case where the Crown’s contention was that the story that the appellant had told on oath in court was false: R v Atkinson 69/00; CA546/99; CA553/99 19 April 2000 at [10].

Outcome of appeal

[23]	For these reasons both grounds of appeal against conviction fail. As indicated the appeal against sentence has been abandoned. The appeal against conviction and sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington