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Last Updated: 25 April 2018
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA35/04
THE QUEEN
v
ALAN JAMES RUBICK
Hearing: 24 June 2004
Coram: McGrath J Paterson J Doogue J
Appearances: G J King for Appellant
A Markham for Crown Judgment: 7 July 2004
JUDGMENT OF THE COURT DELIVERED BY PATERSON J
[1] In December last a jury found Mr Rubick guilty of sexual violation by way of unlawful sexual connection. This was his second trial as the jury, in his first trial in July 2003, was unable to agree. He now appeals against his conviction.
R V ALAN JAMES RUBICK CA CA35/04 [7 July 2004]
Grounds of appeal
[2] The notice of appeal raised five discrete grounds of appeal. There were four sub-grounds in the first ground, namely, conduct of trial counsel. Mr King, for Mr Rubick, submitted that on any of the five grounds a miscarriage of justice had occurred. We propose to consider the grounds of appeal under two general headings:
Application to adduce new evidence
[3] Mr King sought leave, pursuant to s389 of the Crimes Act 1961, to adduce affidavits from:
This application was opposed by Ms Markham, on behalf of the Crown.
[4] In view of the decision which we have come to, it is not necessary to determine the admissibility of this evidence. We note, however, that much of the evidence does not satisfy the test for adducing new evidence. As noted by this Court in R v R (CA130/98, 24 September 1998), new evidence cannot be admitted by an indirect attack on the conduct and tactics of counsel at the trial, except in those rare cases where there can be identified failure to follow the client’s clear instructions or radical mistake. Much of the proposed evidence was hearsay or even double hearsay. The affidavit from the juror from the first trial contained a statement indicating what the majority view of the jurors was. This statement should not have been included and is inadmissible. If we had been required to rule on the
admissibility of the additional evidence, we would have determined that the juror’s affidavit, most of Ms Wilson’s affidavit, and part of Mr Rubick’s affidavit were inadmissible evidence for various reasons. The only evidence which we would have admitted, and we have considered some of this evidence, is the evidence relevant to allegations that there was a failure to follow the express instructions of Mr Rubick or radical mistake.
Background
[5] Mr Rubick, for many years, organised youth community activities, including cubs and coaching athletics. He also ran a mobile disco that catered for school functions in which he employed teenage boys to help with the disco equipment.
[6] In February 2002, the complainant assisted Mr Rubick with a disco at the Tawa Pool complex. The arrangement was that Mr Rubick was to return the complainant to his grandmother’s house at about 10 pm as his mother was at another function that evening.
[7] After the disco, Mr Rubick took the complainant to a pizza parlour in Porirua. The two left there about 10.15 pm. Because Mr Rubick was having difficulty with the reverse gear in his van, he took the complainant to his house rather than drop him off at his grandmother’s house.
[8] The complainant’s evidence was as follows: He began playing on Mr Rubick’s computer. During this time, Mr Rubick, who had been endeavouring to fix his van, came inside. The offending occurred shortly thereafter and included Mr Rubick sucking the complainant’s penis. At that point, the complainant’s mother drove up the driveway. Both Mr Rubick and the complainant pulled their pants up and Mr Rubick told the complainant not to tell his mother.
[9] The complainant had a hotmail account that he accessed on his grandmother’s computer. She checked his emails regularly to ensure he was not receiving any unsolicited “inappropriate” material. Around 18 March 2002,
approximately four weeks after the offending, the grandmother noticed five emails sent by Mr Rubick. They contained pornographic material.
[10] Mr Rubick acknowledged sending the emails. However, he claimed that it was the complainant who had downloaded the material on to Mr Rubick’s computer, placed it in a folder ready for Mr Rubick to send it to the complainant, and who repeatedly pressured Mr Rubick to send this material to him. Mr Rubick eventually did.
Trial counsel’s evidence
[11] Mr Rubick waived privilege and the Crown provided an affidavit from the trial counsel. This counsel attended and was cross-examined before us. Her evidence was that Mr Rubick had strong views on many aspects of the evidence to be given and on his defence. She listened to these views, where relevant briefed the witnesses, and then discussed the evidential matters with Mr Rubick. She said they always came to agreement. We accept trial counsel’s evidence on this point and this undermines Mr Rubick’s allegations that counsel failed to follow instructions.
Conduct of counsel
[12] It was alleged that trial counsel had erred in the following respects:
[13] Many of the allegations made against the trial counsel relate to more than one of these alleged errors.
[14] Counsel in her affidavit filed in the appeal acknowledged that the complainant had given a very strange description of Mr Rubick’s penis. She said she thought it best that the jury was left with the impression that the complainant had described the penis in a bizarre and strange way, and she believed this would add to the concerns she thought the jury would have about the complainant’s credibility. She saw a danger in cross-examining the complainant too closely about his description of the penis, as he may have gone on to describe it in a more “normal” way. She said that she did not consider this matter a major point and thought the best approach was the less said the better.
[15] Mr Rubick in his affidavit does not state that he gave specific instructions that the medical certificate should be adduced in evidence, or that his wife should be asked the same questions in the second trial, although we accept that he probably expected the questions to be asked. The medical certificates were not presented at the first trial. There was no evidence before us of any specific instruction being given, and in the circumstances, we agree with Ms Markham’s submission that if this matter is relevant, it can only be to the submission that this amounted to a radical error on counsel’s behalf. At the worst, it may have been an oversight on counsel’s part in not having the evidence before the jury in some form, but in our view, it cannot be categorised as a radical error. Counsel made a decision not to draw attention to this aspect of the evidence in case the response strengthened the Crown case. It was not a radical error.
[16] The next alleged error was a failure to cross-examine the complainant’s grandmother regarding contradictory evidence from the preliminary hearing relating to the complainant’s access to the emails which Mr Rubick had sent to the complainant. Mr Rubick’s defence was that the complainant was aware that the emails were on his grandmother’s computer before she discovered them, and therefore fabricated the allegations against Mr Rubick to cover his trails and to avoid getting into trouble with his grandmother and mother. At the preliminary hearing, the grandmother gave evidence that one of the five emails appeared to have been opened. At trial, she referred to the emails but did not in her evidence in chief make any reference to the fact that one of them appeared to have been opened. She was cross-examined by Mr Rubick’s counsel and asked whether all the emails were
closed when she looked at them. She replied “Yes”. The complainant in his evidence had denied that any of the emails were open. He said he never saw them before they were discovered. The Judge in his summing up noted “that it does not appear that [the complainant] opened these emails at any time because it was the grandmother that first opened an envelope and then showed it to [the complainant’s] mother.”
[17] Trial counsel stated in her affidavit that she did not cross-examine the grandmother on possible earlier conflicting statements because she did not think this was an important enough issue to take a stand on. She knew that the grandmother would give a lot of very useful evidence to the defence and did not want to unnecessarily antagonise her. She knew the grandmother would be giving evidence of the complainant phoning her from Mr Rubick’s home and telling her there was a problem with the van, and that efforts were being made to fix it. This evidence would corroborate the evidence to be given by Mr Rubick as to the reasons for taking the complainant to the former’s home. Further, counsel did not consider the evidence to be particularly important in view of the defence case that the complainant had downloaded the images himself and wanted Mr Rubick to forward them to him. Thus the complainant knew the contents of the emails and knew who the sender was. Whether he had opened them was of no great importance.
[18] There was no suggestion that counsel was under express instructions to cross- examine on this point. There was evidence before the jury, from the cross- examination of the complainant, that the complainant had asked Mr Rubick to send him some pornographic pictures. While counsel may have further cross-examined the grandmother on this point, not doing so was not a radical error. Counsel knew there was evidence before the Court that the complainant knew about the emails and what they contained. This alleged failure did not undermine Mr Rubick’s defence.
[19] Another allegation was that counsel failed to put to the complainant in cross- examination two important matters. First, that the complainant had himself downloaded a folder load of inappropriate pornographic material from the Internet on to Mr Rubick’s computer. Secondly, that Mr Rubick visited him and asked him to delete the emails, which he refused to do. Mr Rubick saw it as important, not only
for his defence, but also for his motive, to establish that the emails were sent at the complainant’s request and not because Mr Rubick had any sexual interest in the complainant. This point does have some relevance when considering certain actions taken by the Judge.
[20] Trial counsel’s response was that she did cross-examine the complainant on these factors at some length, and that the complainant was cross-examined appropriately about the emails and the various points Mr Rubick wished to make in respect of those emails.
[21] Once again, there was no allegation that counsel failed to comply with express instructions. The cross-examination of the complainant on the use of Mr Rubick’s computer occupied just over eight pages of the transcript. The complainant was advised that Mr Rubick would say that it was the complainant who downloaded the pornographic images on to Mr Rubick’s computer and saved them. The complainant denied that this was the case and repeated this denial on more than one occasion. In our view, there is no substance in the allegation that the complainant was not adequately cross-examined on the downloading of the material. The complainant was asked whether he remembered Mr Rubick “after they’d been sent these emails that you should delete them because he should never have sent them, you remember him saying that to you?” The complainant’s response was “No, I can’t remember.” In the circumstances, counsel could have perhaps pursued this cross-examination further, but did not do so. However, the topic was raised and denied. Counsel did not commit a radical error. We note that Mr Rubick and the complainant gave different versions as to what happened in respect of the computer and the emails. To the extent that these factors were relevant to credibility the jury, after hearing both Mr Rubick and the complainant, accepted the complainant’s evidence.
[22] Another alleged failure to follow instructions related to character evidence. A boy of similar age to the complainant, whom Mr Rubick had known for many years and had trained in athletics, was called as a witness. The complaint was that he was not asked the correct questions. This boy gave evidence that he trained with Mr Rubick six days a week. His mother also gave evidence of this and said she had
no concerns about her son carrying on being trained by Mr Rubick. They trained for one to two hours each day and did a range of training, including cross country and long distance. The boy knew that serious allegations had been made against Mr Rubick, but still continued to train with him. Another proposed character witness was not called.
[23] Trial counsel acknowledged that Mr Rubick thought the calling of the second witness was important but, in the end, agreed to her decision not to call him. She believed that his evidence was barely relevant in that the witness’s contact with Mr Rubick had been 20 years previously. In respect of the witness who was called, counsel’s position was that it was not necessary to lead evidence that there were opportunities for the appellant to have molested that witness as that fact spoke for itself. The jury would have had no difficulty inferring that Mr Rubick had conducted himself completely appropriately with the boy. Further, counsel believed that the most appropriate character evidence was from Mr Rubick’s ex-partner who still supported him, firstly as a person, and secondly as the father of their two sons. She disbelieved the allegations because she had not tried to change the contact between the appellant and her sons.
[24] There is nothing in these complaints. We accept that there was no express instruction to call the second witness. The evidence of the witness who was called was appropriately handled. In the circumstances, there was neither a failure to follow instructions nor any error, let alone radical error, in the way counsel dealt with the character issue.
[25] A further complaint was that counsel failed to investigate issues relating to the complainant’s background and previous false allegations, which had been raised by the juror from the first trial. This was said to be radical error, failure to follow instructions and failure to prepare properly for trial. We have already determined that the juror’s evidence is not admissible on this appeal. However, we can consider this issue because Mr Rubick in his affidavit provided a copy of a letter which he sent to counsel after he had been provided with certain information by the juror. In summary, the juror suggested to Mr Rubick that from inquiries he had made, the complainant may have made false allegations in the past, and these could be
confirmed by his previous school principal. Unfortunately, the letter which Mr Rubick sent to his counsel incorrectly named both the school and the principal. Coupled with this allegation, was a suggestion that another school principal could tell counsel about experiences with the complainant.
[26] Counsel did not contact either of these school teachers. On receiving Mr Rubick’s letter, she arranged for one of her partners who knew one of the principals named, to contact that principal. The partner did make a confidential approach to the principal and reported back that there was no substance in the allegation. Counsel was not aware until the time of this appeal that the wrong principal had been approached. She also took the view that she should not approach the juror. In respect of the other school teacher, counsel acknowledged that the name of the teacher had been passed on to her by Ms Wilson. Counsel’s evidence was that she asked Ms Wilson if she could make arrangements for this person to talk to her about the complaint directly. She further recollects that Ms Wilson was not successful in persuading the person to meet with her so she could not take a brief of evidence from her. Both counsel and her secretary have checked the file and have not been able to locate the name of the second school teacher, or her phone number.
[27] We are of the view that counsel’s conduct was not inappropriate. She sought to clarify the allegations which Mr Rubick had passed on to her, but was unable to do so because she had been given the wrong name and school. We agree it would have been inappropriate for her to have contacted the juror. On the evidence, we are not satisfied that counsel was requested to contact the other teacher. There is nothing in this point.
[28] Before leaving this issue, we comment on a submission made by Mr King. He submitted that notwithstanding that counsel had been unable to verify the hearsay and unsubstantiated allegations against the complainant, nevertheless counsel should have cross-examined the complainant on these allegations. This submission is based on a false appreciation of the rules regarding the impeachment of a witness. Before asking a question in cross-examination, a counsel must have a good faith basis for believing that the impeaching fact is in fact true. Without such a belief, counsel cannot inquire into it. A Judge is entitled to ask counsel to disclose the basis for
going into a particular matter. It is necessary for counsel to be able to prove what is alleged if the witness denies its existence.
[29] The final specific allegation against counsel was a failure to re-examine Mr Rubick regarding the cover of a VCR tape on which he had been unfairly cross- examined. This was said to be a failure to properly present the defence case and a failure to follow instructions. At both trials, Mr Rubick was cross-examined about a VCR cover labelled “Teenage Fantasies and Afternoon Delights.” No videotape cassette was found inside the cover and the words on the cover were handwritten. Mr Rubick states that he was not aware of the existence of the cover until after the police found it. Later, he discovered that the VCR cover belonged to his mother. The VCR cover was not seized by the police, nor was it produced as an exhibit at the trial. Evidence was given by a detective of questioning Mr Rubick about the cover when it was found. He was cross-examined by Crown counsel on the cover. He gave an explanation for its existence. He was asked to explain his answer “Oh shit?” to the detective when it was first referred to him. He replied he could not explain that answer but denied it was because he was “caught out.” He did acknowledge that it may have been because it might implicate him in something in which he was not involved.
[30] Trial counsel’s response was that she did not think the Crown would pursue the matter at the second trial. She saw the matter as something which Mr Rubick had dealt with in cross-examination when he gave a reasonable explanation.
[31] We can not see how this matter could in any way lead to a miscarriage of justice. It was a relatively minor matter and, in our view, was of little probative value.
[32] There was also a general submission that the questioning of witnesses in the second trial was not as comprehensive and thorough as in the first trial. This is a general allegation, unsupported by specifics. In our view, there is nothing in the allegation. Second trials, because the issues have crystallised, are often shorter than first trials.
[33] We have therefore come to the view that Mr Rubick cannot succeed on any of his grounds based on competence of counsel. She did not fail to follow any express and definite instructions to call certain witnesses or to cross-examine on any particular topics. In hindsight, there are always issues which could have been handled differently. One or two of the matters on which Mr Rubick complains fall into this category. Those matters fall within the counsel’s discretion in the legitimate exercise of his or her discretion in conducting the case. Even if there were one or two matters which we consider might have been handled differently, they were not radical errors and, when considered cumulatively, do not lead us to the view that there was a miscarriage of justice. The allegation that counsel failed to prepare properly is not made out. The appeal cannot succeed on any of the grounds relating to the conduct of counsel.
The conduct of the trial
[34] It is not necessary to deal with all the issues made on behalf of Mr Rubick relating to the conduct of the trial. Some of them could not have assisted him. We fail to see how different rulings between the first and second trial result in unfairness. An incorrect ruling at the second trial may result in a miscarriage of justice, but the fact that it differs from a ruling given in an earlier trial is irrelevant. There are one or two matters however that do concern us and which, in our view, have led to the possibility of a miscarriage of justice.
[35] Mr Rubick’s defence was that the complainant fabricated the complaint to explain to his grandmother the existence of the emails which the complainant had downloaded on to Mr Rubick’s computer and which he had asked Mr Rubick to send to him. Mr Rubick complied with this request, but then realised it was a mistake, and went round to the complainant’s house and asked him to delete the images from his computer. The defence included the following factual components:
If the jury disbelieved Mr Rubick’s evidence on one of these components, they would have made a credibility finding which was likely to undermine his whole defence.
[36] The complainant denied that he downloaded the images and said he could not remember Mr Rubick asking him to delete the images. It was not put to the complainant in cross-examination that Mr Rubick had made the request to delete when he visited the complainant at his home. After initially denying that he had requested Mr Rubick to send the emails to him, the complainant did in effect acknowledge he had asked him to send some pornographic material to him.
[37] The complainant was asked in cross-examination whether Mr Rubick had asked him to delete the emails but, as noted, replied “No I can’t remember.” The complainant’s grandmother spoke to Mr Rubick after the images were discovered. During cross-examination, she said that in that conversation, Mr Rubick said “that he had asked [the complainant] to delete them.”
[38] The other evidential exchange which is relevant occurred when Mr Rubick’s counsel was leading his evidence. The following exchange occurred:
Q. You realise [the complainant] yesterday denied ever asking you for pictures other than this one night?
A. Yeah. This was in front quite a lot of people, and another time was at a Rimutaka Fun Run when he mentioned the same thing to me, but that was the time he said to me, “I’ve left a folder on your – stuff I’ve downloaded on your computer, and I’ve left where it is on your pad”
THE COURT: This wasn’t put in any sort of detail to [the complainant] – with reality that should’ve been put to him, given that he’s now got precise recall of incidents that happened when this was asked.
Counsel responded by saying that in view of the complainant’s denial that he never asked Mr Rubick at all, she did not consider putting all the precise details to the
complainant in her cross-examination of him. As a result of the Judge’s intervention, counsel did not pursue further this line of examination.
[39] There are three paragraphs in the summing up which Mr King suggested were unfair to Mr Rubick. These were:
simply on a faulty logic, he sent the emails therefore he must be guilty of this offence.
[40] In addition, there was criticism of how the Judge referred to the VCR cover matter in his summing up. His comments were:
You recall also, his explanation about the video title that was found there. His reference at that stage and you compare that with the evidence that he has given today about how that particular title or video cover came to be in his possession. Although what he said to the police was not on oath and subject to cross-examination, it is part of the material that you are entitled to look at in matters of this kind.
[41] As the Judge reminded the jury, the issue in this case was one of credibility. In our view, the Judge in his summing up made comments which could be interpreted as his view on the credibility of Mr Rubick. He did this when commenting on the evidence rather than when summarising the respective cases of the Crown and the defence. The comments would therefore have been perceived as being the Judge’s view of the matter, rather than originating from counsel’s submissions. The first of these comments appears in paragraph 25 of the summing up when the Judge referred to Mr Rubick’s evidence that he been around to the complainant and asked him to delete the images. The Judge commented:
Now the first time we heard mention of that was today. There was no cross- examination specifically of [the complainant] when he gave evidence yesterday. That there had been such a request made and that he had been to the house and requested him to delete them. You will then have to make what you will of that explanation given that the opportunity was clearly there for that to have been put to [the complainant] as he gave his evidence yesterday.
[42] While counsel did not cross-examine the complainant on whether Mr Rubick had called at his house to make the request, she did ask the complainant whether he remembered Mr Rubick asking him to delete them because he should never have sent them. The complainant replied “No, I can’t remember” (see para 21 above). The comment made by the Judge carries the inference that the complainant was not cross-examined on whether Mr Rubick had made the request. This was not correct and further, the complainant’s grandmother in evidence stated that Mr Rubick had told her that he had made the request. The jury may well have concluded from the Judge’s statement that the matter should have been put to the complainant, that the
evidence was a recent fabrication. This may have affected their assessment of Mr Rubick’s overall credibility.
[43] Also in paragraph 25 of the summing up the Judge’s comment that “[the complainant] you may think, was unaware of the emails if you accept his evidence on that matter and you will recall he was not specifically challenged on the fact that Mr Rubick had come round and asked him to delete them”, was a further comment on Mr Rubick’s credibility. This comment followed immediately after the Judge stated that it was clear that the complainant did not open the emails. In our view, the comment should have been balanced by a statement that Mr Rubick’s position was that the complainant was aware of the emails because it was he who had downloaded them and requested Mr Rubick to send them to him. While there was evidence to this effect, the jury may have been influenced by the Judge’s comment into thinking that the Judge accepted that the complainant was unaware of the emails.
[44] The position is not improved by the comments in paragraph 26 of the summing up. Following as it does on para 25, it could well have been taken as the Judge’s endorsement of the Crown’s suggestion that Mr Rubick was operating in a secretive nature at about the time. This suggestion did not reflect well on Mr Rubick. The Judge then said that “it may be a pointer to just what the accused was up to in terms of his secretive dealings with Greg and that may be of some assistance or a pointer to what generally he was about at the time.” We accept the Judge then gave a warning and made a reference to the Crown submission in paragraph 27 of the summing up. However, read in context, we have unease that the impression which the jury would have gleaned from the Judge’s comments in paragraphs 25 to 27 of the summing up was that Mr Rubick’s defence was fabricated, some of it at a late stage because he had not had questions put to the complainant, and that he was acting in an underhand manner in his dealings with the complainant.
[45] Although only a minor point, the Judge’s reference to the VCR cover and, particularly the reference to the jury being entitled “to look at it in matters of this kind”, when considered with the matters already mentioned, contained a pejorative flavour which could have also reflected on Mr Rubick’s credibility.
[46] We accept that the Judge did warn the jury that they should not find Mr Rubick guilty because of the email evidence. However, we are of the view that notwithstanding these cautions, the jury may have gained a perception from the Judge’s views, which appear to have been based on factual errors and an irrelevancy relating to the VCR cover, that Mr Rubick’s evidence and his credibility could not be accepted. In a case which was determined on credibility, we consider there must be a real possibility that there was a miscarriage of justice. The matters on which the Judge appeared to have expressed a view on credibility were those that went to the heart of Mr Rubick defence.
Result
[47] For the reasons given we quash the conviction and order a new trial.
Solicitors:
G J King, Lower Hutt, for Appellant Crown Law Office, Wellington
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