R v B (CA124/04) [2004] NZCA 409 (7 September 2004)

Last Updated: 2 December 2018

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 124/04

THE QUEEN

v

B (CA124/04)

Hearing: 2 September 2004

Coram: Chambers J Williams J Doogue J

Appearances: M E Jamieson for Appellant
B Thomas for Crown Judgment: 7 September 2004

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

Introduction

[1] B appeals against his conviction in the District Court at Tauranga of sexually violating an eight year old niece by rape between 1 December 1986 and 30 January 1987. The trial was held before Judge Hobbs and a jury. There is no appeal against the seven year sentence of imprisonment imposed upon the appellant.

R V B (CA124/04) CA CA 124/04 [7 September 2004]

[2] The basis of the appeal is that there has been a miscarriage of justice as a result of trial counsel’s radical mistake or error in his cross-examination of the medical witness for the Crown, a Dr Lees.

[3] The appeal is dependent upon an application for the admission of new evidence in support of the appeal. The appellant has tendered an affidavit from Dr Topping, a medical practitioner who has substantial experience in giving evidence in respect of sexual abuse cases. There is no objection to the application to adduce fresh evidence and we have considered both the additional evidence for the appellant and the affidavit evidence of the Crown in reply.

Background

[4] The girl gave evidence that the appellant used to come into her room when she was sleeping and when she awoke she found him touching her. She said that on different occasions he would then touch her on her vagina, lift up her nightie and “stick his penis into my vagina”. The girl ultimately complained about this to a cousin and to her mother.

[5] The principal supporting evidence for the girl’s evidence was that of Dr Lees, a specialist paediatrician. His deposition statement, based on a medical report of 20 October 1987 in identical terms, referred to the hymen of the girl as being “no longer intact”. The appellant and his counsel were relying upon that terminology for their trial strategy. The same evidence referred to the possibility that there could have been penetration of the vagina.

[6] When Dr Lees gave evidence at trial, however, he said that it “was apparent that the hymen was no longer present”. He said that that indicated to him that “some large object had been passed through the hymen or membrane probably on more than one occasion”. He based the probability on the fact that it was known that after a single episode of penetration the hymen or membrane could heal even if divided. He expressed the opinion that the fact that the hymen was no longer intact “was consistent with an object of some sort being passed through the membrane on a number of occasions”.
[7] Appellant’s trial counsel had intended to cross-examine the doctor with a view to obtaining a concession that the fact that the hymen was “not intact” was not necessarily conclusive of sexual abuse. If no such concession was forthcoming then, as the appellant’s defence was one of denial, the defence strategy was to suggest that some other person other than the appellant was responsible for what had occurred.

[8] The evidence given at trial by Dr Lees surprised trial counsel. His cross-examination established that the doctor could not tell what had penetrated the hymen and how long ago it had happened. However the doctor would not concede that the absence of the hymen could have been accidental as opposed to deliberate.

[9] In briefly traversing the evidence, the trial Judge referred directly to the evidence of the doctor in the following manner :

[25] ... You will probably consider that evidence to be very significant. I do not need to repeat it to you but his evidence in essence was that upon examination, he discovered that [the complainant’s] hymen simply was not there, it had gone. He told you that this was consistent with some reasonably sized object having ruptured the hymen. He said also that penetration had occurred on a number of occasions. That evidence obviously is of considerable significance.

[10] In referring to the submissions of trial counsel for the appellant the trial Judge said :

[31] [Counsel] also criticised the fact that the examination of [the complainant] took place some 10 months after the alleged rapes. Again that is a matter for you but I do point out to you that Dr Lees said this and I am referring again to page 24, he was asked “If you have repeated penetrative abuse, would you expect there to be scarring or tags on the hymen?”, the answer was “No, not at all, no, not usually”, “even in a forced situation”, “if you were examining the patient in a historical context where that force had occurred some time prior to the examination, I wouldn’t expect to find any evidence of scarring or whatever”.

The appeal

[11] It is common ground that in the circumstances of this case the appellant must show radical mistake or error on the part of his trial counsel. It is submitted that that occurred and that the miscarriage of justice was “substantial”. It is submitted that
this Court cannot be sure that the jury would without doubt have convicted had the evidence of the doctor been properly challenged.

[12] The case for the appellant relies substantially upon the evidence of Dr Topping. She deposes that there is a real distinction between saying that a hymen is “no longer intact” and saying that it was “no longer present”. If the hymen is no longer intact this suggests a cleft in it. It is still present but disrupted in some way. However, to say that a hymen is no longer present indicates that it is totally absent, which would support the view that an object had been passed through it on more than one occasion and that that is unlikely to have occurred accidentally. Dr Topping also notes that there has been significant study and advancement of knowledge since 1987 when the examination took place. She further notes that training in respect of sexual abuse cases was not then available to doctors.

[13] On the basis of this evidence counsel for the appellant now submits that trial counsel should have challenged Dr Lees and if necessary sought an adjournment to enable him to take advice or adequately prepare his cross-examination as to the following matters :

(a) Dr Lees had twice (in his notes of examination and at deposition) used the term “not intact” as opposed to “no longer present”.

(b) “Not intact” can suggest a cleft or disruption consistent with congenital variation, not the total absence of hymen.

(c) The length of time between his examination of the complainant and giving evidence at trial (some sixteen years).

(d) The lack of any diagrammatic or other evidence of his findings beyond his notes of examination where he refers to the hymen as being “not intact”.

[14] It is submitted for the appellant that the impact of such questions may have significantly diluted the force of Dr Lees’ evidence before the jury, characterised as it has been by the trial Judge as being “of considerable significance”.

[15] The evidence of trial counsel for the appellant is consistent with the trial strategy already touched upon. When the evidence given by Dr Lees at trial
surprised trial counsel, he knew he could not take further instructions that would assist him. He did not consider applying for an adjournment.

[16] With the benefit of hindsight the respondent accepts that trial counsel might have been prudent to seek an adjournment to fully consider how to deal with what is said to be the substantially altered evidence of the doctor. Nevertheless, it is submitted for the respondent that the strategy adopted by trial counsel was sound. There appeared to be a basis for challenging the evidence in the way that trial counsel did. That challenge was consistent with the overall defence strategy.

[17] It is accordingly submitted for the respondent that if trial counsel was indeed in error in the manner in which he dealt with the evidence of the doctor, such error was not sufficient to amount to a radical mistake or blunder in the circumstances of the case.

[18] Because of the nature of the affidavit evidence of Dr Lees, the alternative submission is made that in any event any error could not have had any significant prejudicial effect upon the outcome of the trial and that there is therefore no substantial miscarriage of justice. This is because the doctor deposes that despite the passage of time since his examination of the complainant in 1987 he vividly recalls the particular case. He enlarges upon the reasons for this. As a result he recalls clearly that he observed that the hymen was not present. Thus his evidence at trial was accurate. The appellant is not in a position to challenge this or Dr Lees’ conclusions. Indeed, Dr Topping appears to agree that if the hymen was not present then Dr Lees was correct in his conclusions.

[19] Dr Lees further deposes that to him the terminology in both his original medical report and deposition statement and his evidence at trial meant the same thing, not different things. Cross-examination on this topic was therefore doomed to failure. In addition he says he does not consider the additional knowledge that has become available to doctors since 1987 would in any way affect his opinion that his findings were conclusive of penetration by a large object probably on repeated occasions.
[20] It is accordingly submitted for the respondent that regardless of any steps taken by trial counsel the medical evidence would have had to have been that no hymen was present and that this indicated that a non-accidental and probably repeated penetration of the hymen had occurred involving a large object. The only advance trial counsel would have been able to make in cross-examining Dr Lees would have been in respect of the difference in terminology that he employed. However, given the doctor’s clear evidence that the hymen was not present and his confirmation of that evidence, any cross-examination along those lines could have little or no bearing upon the outcome of the trial.

Discussion

[21] With the benefit of hindsight it is always easy to suggest that some other course than that followed should have been considered by trial counsel.

[22] In the present case it is clear that trial counsel was taken by surprise by the difference in terminology used by Dr Lees at depositions and at trial. It is therefore easy to say that he should have applied for an adjournment. That in itself would have affected the flow of the trial and might have resulted in adverse consequences for his client with the jury. The jury could have taken it as a sign of weakness or as an indication the appellant’s case faced difficulties.

[23] It is also very easy to say that counsel should have cross-examined the doctor in respect of the difference in terminology in his deposition evidence and his evidence at trial. In circumstances where Dr Lees was and remains crystal clear as to the state of the hymen, that would probably have been very detrimental to the appellant. It would have reinforced the damaging nature of Dr Lees’ evidence for the appellant’s case. Similar or even worse problems would have arisen if the doctor’s memory had been challenged. The doctor had every reason to remember the examination of the complainant, as it was the only one he carried out with a particular doctor present. It may even have been that the other doctor or one of the two nurses present could have been called to reinforce Dr Lees’ evidence.
[24] In the light of what we now know the course adopted by trial counsel was probably the very best open to him. He did obtain acknowledgements that the doctor could not tell what might have penetrated the hymen or when. Unless there was medical evidence available to the appellant that the hymen was present there was no other basis upon which counsel could cross-examine Dr Lees effectively.

[25] There is thus no basis upon which we can say there was any error or blunder on the part of trial counsel, let alone a radical mistake or error. In any event, given the evidence of Dr Lees, there is no basis upon which we could say that there was a mistake that could have had a significant prejudicial effect upon the outcome of the trial and that there was a miscarriage of justice.

Result

[26] The appeal is dismissed.

Solicitors:

Norris Ward McKinnon, Hamilton for Appellant Crown Solicitors, Tauranga