R v A (CA100/03) [2004] NZCA 432 (3 August 2004)

Last Updated: 30 December 2018

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA100/03 CA261/03

THE QUEEN

v

A (CA100/03)
(CA261/03)

Hearing: 27 July 2004

Coram: William Young J John Hansen J Doogue J

Appearances: R A Harrison for Appellant
E M Thomas for Crown Judgment: 3 August 2004

JUDGMENT OF THE COURT DELIVERED BY JOHN HANSEN J

[1] Following trial the appellant was convicted in the Auckland High Court on 30 counts of sexual and physical abuse involving several of his family members. He was sentenced to 17 years imprisonment with a minimum non-parole period of ten years.

[2] The appellant appeals only against the convictions for sexual offending against complainant R, his stepdaughter. He alleges there were radical errors in the conduct of the defence case at trial, resulting in a miscarriage of justice. He further

R V A (CA100/03) CA CA100/03 [3 August 2004]

appeals against his sentence on the ground that it was manifestly excessive, given the sentencing Judge’s mistaken view of the facts of the case.

[3] The appellant first met his wife in 1990 when she was 17 and his stepdaughter R was two months old. They entered into a relationship and ultimately married. They had three children together. It is apparent from the convictions not appealed by the appellant that he was physically and sexually abusive towards his wife and physically abusive towards two of his children from an early stage. He was also convicted of assaulting his father-in-law.

[4] R alleged that when she was nine years old in 1999, the appellant began to sexually abuse her. This was said to have begun with forced oral sex and progressed to rape, anal intercourse and digital penetration. This occurred over a two year period until the family parted. R said the offending occurred on every occasion when the appellant could get his hands on her, usually when the mother was out.

[5] In relation to R, the appellant was convicted of four counts of sexual violation by rape, three being representative. He was also convicted of seven counts of sexual violation by unlawful sexual connection, six of those being representative.

The appellant’s submissions

[6] The complaints about trial counsel’s conduct of the trial are directed towards his cross-examination of the complainant relating to the degree of penetration, and the failure to cross-examine the medical witness so as to conclusively demonstrate that there could not have been penile or digital penetration past the hymen. A further complaint was made that trial counsel should have investigated expert evidence such as that contained in the affidavit of Dr Goodyear-Smith, filed in this appeal, along with an application to adduce her evidence. Ultimately, it was submitted, such cross-examination would have provided the basis for an attack on R’s credibility.

[7] The appellant’s submissions are premised on the basis that R, in her evidential video interview, described acts of full vaginal intercourse. On that basis it is argued that it was the responsibility of trial counsel to further investigate the extent
of penetration in cross-examining R. Counsel characterised the evidence as only being capable of interpretation as an allegation of full vaginal penetration. It was further submitted that on that basis trial counsel had an obligation to press the medical witness, Dr Carmichael, to have her confirm that her examination of R showed that there could have been no penetration beyond the hymen.

Crown’s submissions

[8] The Crown referred to the affidavit of trial counsel and said the question was how best to deal with the evidence of Dr Carmichael and that of the complainant. The doctor’s evidence was classified by Mr Thomas as neutral and not supportive of the Crown case. The strategy adopted was that, in the absence of positive medical findings, if R resiled in any way from the evidential video this could be used to attack her credibility. The Crown submitted that the factual basis for this was in fact established by trial counsel’s cross-examination of R.

Discussion

[9] Counsel were in agreement as to the applicable threshold. It is for the appellant to demonstrate radical mistakes, not merely decisions that could have yielded better results: R v Pointon [1984] NZCA 72; [1985] 1 NZLR 109. Mistaken tactics will not suffice and it is insufficient that other counsel may have acted more competently, R v S, CA245/02, 24 July 2003.

[10] The evidence of R must have viewed against the background that she is a young and relatively unsophisticated child. While parts of the evidential video transcript pointed to by Mr Harrison could support a submission that R was describing full penile penetration, other parts fall short of that.

[11] There was also evidence from the mother that R had told her of the offending and, in cross-examination, she confirmed to trial counsel that R told her the appellant had “put his thing inside her, that it had hurt?”.
[12] Cross-examination of child complainants is always fraught. How far to proceed with that cross-examination is often a difficult decision to make.

[13] In this case the relevant portion of the cross-examination can be found at page 53 of the transcript. It is as follows:

17. You also said on the video that dad put his thing in your privates didn’t you?

A Yes.

Q Your private parts?

A Yes.

17. And I think you told Julie that that was also in the middle of your private part didn’t you?

A Yes.

Q Did his thing go right inside you R? A I don’t know.

Q Did you bleed when he put his thing there? A I don’t know.

Q Did you tell your mum that his thing went right inside you?

A. No.

Q You remember the couple of days before you and your mum left? A Yes

17. In those days just before you left did you tell your mum that he put his thing right inside you?

A No.

Q Just the last question on this, did it really hurt you when he did that? A Yes.

[14] And then further on the same page:

Q The same questions about that and then I’ll move on but when he did that did it feel as if his thing went right inside you?

A I don’t know.

Q Did it bleed at all when that happened? A Once.

[15] If the jury did accept that the evidence we were referred to by Mr Harrison amounted to an allegation of full penile penetration, then it is apparent that in cross-examination trial counsel succeeded in having R resile from that position to the extent that she stated she did not know “whether his thing went right inside”. She also contradicted her mother’s evidence that she had stated this to her mother about the time of the separation. Counsel was also able to sow seeds of doubt surrounding the alleged bleeding.

[16] We agree with Mr Thomas’ submission that this is as far as counsel could reasonably go in the circumstances. If the matter had been pushed with R, it is quite possible that an answer adverse to the appellant could have been forthcoming. Clearly trial counsel established enough to make a strong submission to the jury that R, in cross-examination, described things in a significantly different way from what she had said in the video interview and contradicted what the mother alleged she had said to her. Additionally, the cross-examination laid the foundation to make a strong submission that what was described in the video transcript was inconsistent with the medical findings. In other words, trial counsel had skilfully laid the ground for an attack on R’s credibility.

[17] However, Mr Harrison made a further submission alleging counsel error. He submitted that trial counsel ought to have cross-examined Dr Carmichael further, to obtain from her a concession that, due to the state of the hymen, penile or digital penetration of the complainant’s vagina was impossible. The doctor said that her findings were consistent with there being no history of sexual interference with this child but equally consistent with the history of sexual interference she had been given. What that history was is apparent from her summary where, after describing what her clinical examination revealed, she stated:

This is still compatible with the history as given as intracrual intercourse where the penis is rubbed between the labia major can cause local irritation and possibly even bleeding without damaging the hymen.

[18] This passage and the drift of her evidence as a whole was contrary to any suggestion of penile or digital penetration. Again, if the jury took such allegations from the video transcript the medical evidence would contradict R.

[19] We do not consider it necessary that trial counsel should have explored this further as it was evident that Dr Carmichael’s evidence was inconsistent with any allegation of penetration past the hymen. Further, additional questions could have elicited more of the detail of the history R gave the doctor, again with possibly adverse results for the appellant.

[20] In our view there has been no radical error or mistake demonstrated in this case. The approach adopted by experienced trial counsel is one that was appropriate in all of the circumstances of this case, particularly when the appellant’s case was a complete denial. His gentle cross-examination elicited significant material to enable him to highlight inconsistencies between the medical evidence, R’s evidence in the evidential video and her evidence under cross-examination. This created the foundation for the strong submission relating to R’s credibility. Further cross-examination could well have elicited answers adverse to the appellant.

[21] In the course of argument, one other matter was raised that was not directly referred to in the notice of appeal. It was mentioned in passing by counsel in the course of his submissions and we called counsel back at the conclusion of the case to hear argument on this point.

[22] At paragraphs [102] and [103] of the summing-up, the trial Judge said:

[102] So that is the evidence that the doctor gave on those particular issues and apart from the passages I have read, it does not seem to have been suggested to her that she would have expected to see damage to the hymen given the history that she had been given. It was certainly not put to her that if the penis for example had gone right into the vagina, that that would have resulted in damage to the hymen which she would have observed.

[103] So it is a matter for you as to what you make of all the evidence but I think it is important that you have the full picture before you so that you can come to your conclusion as to whether that evidence assists you one way or another. Certainly the expert opinion of the doctor was that the evidence did not in fact assist you at all. But in the end, it is for you to decide what evidence you accept and what you reject.

[23] Mr Harrison submitted that the last sentence of paragraph [102] was essentially a comment by the Judge inviting the jury to infer that there could be full penile penetration without damage to the hymen. He said this view by the Judge is reinforced in his sentencing notes where he said at paragraph [6]:

... but matters quickly progressed to having full intercourse with her.

[24] He also complained that paragraph [103], where the Judge characterised the doctor’s evidence as essentially neutral and invited the jury to set it aside, could well have misled the jury, given the medical evidence precluded vaginal penetration.

[25] However, the Crown submitted that the Judge was merely making the comment on the state of the evidence. Counsel submitted that this would not have had the effect of misleading the jury in the way suggested as they would have been left in no doubt as to the true position.

[26] It is to be noted in the passages immediately before paragraph [102], the Judge dealt at length with Dr Carmichael’s evidence and read significant passages from it, in particular the summary that implicitly precluded vaginal penetration.

[27] Paragraph [103] is not wholly accurate as the medical evidence discounted vaginal penetration.

[28] Our assessment of what the Judge said is affected by hindsight and particularly the Judge’s remarks on sentence. Those remarks were, of course, not before the jury and there is scope for legitimate doubt as to what the jury took from what the Judge said. We are, however, left with the view that paragraph [103] in particular was not wholly accurate. The medical evidence discounted vaginal penetration which R might be thought to have been alleging in her evidential interview. This misdirection as to the facts has caused us anxiety as to whether there may have been a miscarriage of justice.

[29] Not every misapprehension as to the evidence which a Judge shares with the jury in summing-up warrants a new trial. As we have noted, it is not entirely clear what the jury would have understood the Judge to mean. Further, the Judge had
earlier given the standard direction that questions of fact were solely for the jury. He specifically told them that if he expressed a view different from their own his view should be disregarded. He had read to the jury the critical evidence from the doctor. As well, the jury had heard the submission of trial counsel highlighting the inconsistencies between what R said in her evidential video, the cross-examination and the medical evidence.

[30] Essentially this was a case about credibility. It is clear that the jury rejected the appellant’s evidence that none of this offending occurred. They were faced with the inconsistencies between the evidential video and the cross-examination evidence. They were further faced with a situation where, if they accepted that the evidential video went as far as Mr Harrison submits, it was inconsistent with the medical evidence. And they had the doctor’s evidence that the physical findings could only be compatible with intracrual intercourse which the doctor defined. This evidence was specifically repeated by the Judge just prior to paragraphs [102] and [103]. We do not believe the Judge’s comments would have misled the jury to the extent that a miscarriage of justice is likely.

[31] It follows that we are satisfied that there is no radical error on the part of trial counsel and nor was any miscarriage caused by the Judge’s comment.

[32] Accordingly the appeal against conviction must be dismissed.

Sentence appeal

[33] In relation to the appeal against sentence, Mr Harrison submits that because the Judge proceeded on a wrong factual assumption, the sentence is manifestly excessive. He submitted the sentencing notes make it clear that the Judge was sentencing on the basis of full penile and digital penetration when the medical evidence makes that impossible.

[34] Mr Thomas submitted that in rejecting preventive detention the sentencing Judge correctly had regard to R v Leitch [1998] 1 NZLR 420, in determining that a lengthy finite sentence was appropriate.
[35] He further relied on R v T (2002) 20 CRNZ 51 where the appellant appealed against his sentence of 15 years imprisonment including a minimum non-parole period of nine years. The sentence was imposed in respect of his offending against his step-daughter. He had pleaded guilty to two representative charges of indecent assault of a girl under the age of 12 years, and was found guilty following trial of six counts of rape (five of which were representative charges) and three counts of sexual violation by unlawful sexual connection (one representative count). The offending occurred over a period of six to seven years, starting when the complainant was seven years of age. The sentence was upheld and this Court noted that the totality of the offending made comparison with sentences for rape on a single occasion inappropriate. This Court said that the strongest denunciation was called for, for the repeated rape of a child over a significant period with its inevitable destructive impact. The Court, in reaching that conclusion, referred to the earlier decision of R v Kolio (CA219/01, 1 November 2001). In that case the appellant appealed against a 15 year sentence imposed for 18 charges, eight of which were representative. This was a range of sexual offending against a single complainant, the daughter of his partner. It occurred over a period of 11 months and resulted in the 12 year old victim becoming pregnant. The starting point of 17 to 18 years imprisonment adopted by the sentencing Judge was upheld, because the case fell within a class of cases which justified a starting point near to the maximum sentence for a single offence. The Crown submitted those cases justified the sentence imposed by the Judge.

[36] In the present case, it does appear that the Judge sentenced on a wrong factual basis. Despite the medical evidence, he sentenced on the basis of there being full penile and digital penetration of the vagina. At paragraph [6] he stated:

In 1999 when R was nine years of age, you began to abuse her sexually. You started with making her suck your penis but matters quickly progressed to having full intercourse with her. You also indulged in anal intercourse and digital penetration of her vagina.

[37] The Judge’s conclusion that there had been full penile and digital penetration of the vagina was plainly part of his assessment of the over-all criminality of the appellant’s actions. Given our view that this conclusion was wrong we must make some adjustment to the sentences imposed on the appellant.
[38] The Judge concluded a total sentence of 17 years was appropriate and imposed a minimum period of imprisonment of ten years. Given the sentencing proceeded on a factually incorrect basis we consider the total sentence should be reduced to 15 years and the minimum term of imprisonment to eight and a half years.

[39] Accordingly, the appeal against sentence is allowed and the cumulative term of 17 years imposed on the rape and sexual violation charges is quashed. A sentence of 11 years is imposed on the eight counts of sexual violation by rape and four years on the seven charges of sexual violation by unlawful sexual connection. However, the sentences for those two sets of offending will be cumulative to make a total of 15 years imprisonment. All other sentences will remain undisturbed.

Solicitors:

Crown Solicitor, Tauranga