R v B (CA365/03) [2004] NZCA 435 (26 November 2004)

Last Updated: 30 December 2018

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139, CRIMINAL JUSTICE ACT 1985. ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA365/03

THE QUEEN

v

B(CA365/03)

Hearing: 18 November 2004
Court: Hammond, Potter and Doogue JJ Counsel: L C Ord for Appellant
F E Guy for Crown Judgment: 26 November 2004

JUDGMENT OF THE COURT

A Application for leave to adduce further evidence dismissed. B Appeal against conviction dismissed.

C Appeal against sentence dismissed.

R V B(CA365/03) CA CA365/03 [26 November 2004]

REASONS

(Given by Doogue J)

Introduction

[1] In July 2003 the appellant faced trial in the District Court on six counts of a sexual nature in relation to two of his nieces, C and D, who are sisters

[2] Counts 1, 2 and 3 related to C. Count 1 was a single count of rape relating to an incident when C was aged 14, in 1988 or 1989. The appellant was convicted of this offence. The second and third counts were of indecent assaults against C in respect of which the appellant was acquitted. The fourth count was a charge of rape relating to D. The appellant was convicted of this offence and of an associated offence, the subject matter of Count 5, which alleged unlawful sexual connection between the appellant’s tongue and the complainant’s genitalia. The final count was a representative count of indecent assault against D in respect of alleged touching and stroking of her bottom. The appellant was found guilty of that offence as well. The offending against D occurred in 2000 and 2001.

[3] The appellant was sentenced by Judge Gittos, the trial Judge, to nine years imprisonment for each of the two rape offences, two years imprisonment for the unlawful sexual connection offence, and 12 months imprisonment for the indecent assault offence, the sentences being concurrent.

[4] The appellant appeals against his convictions and his sentence of nine years imprisonment for the rape of C in the late 1980s.

Background

[5] C alleged the appellant raped her at the home of another relative following a family party. C said that she became upset at the party, was sobbing and went to a bedroom where there were two single beds. There was another person asleep in one of the beds. She got into the other bed fully clothed. She said that while she was
still upset and crying the appellant entered the bedroom and, after fondling her and kissing her and telling her “it was all right”, had sexual intercourse with her. She was 14 years of age at the time. It was common ground that numerous other family members, including the complainant’s parents, were present at the address and either awake or asleep at the time of the alleged offence. The appellant denied C’s account totally.

[6] D had been at a party. She woke up early in the morning, hearing the appellant, who was on top of her, yelling at his son to go away. She had no memory whatever of what had happened in the hours between being at the clubrooms where the party was held and that point. She said that the appellant proceeded to have sexual intercourse with her against her will, while she was feigning sleep. This occurred in a bed in a garage at the appellant’s property. Immediately following the rape D said that the appellant performed oral sex upon her. She left the appellant’s home in her own car at about 4.30am. The subsequent offence of indecent assault occurred at two functions at which both D and the appellant were present. The appellant denied all of this.

Grounds of appeal

[7] There are six grounds of appeal in respect of the appellant’s convictions, which we will deal with separately. They can be summarised as:

1. “Fresh evidence”;

2. An alleged error of law by the trial Judge in refusing leave to cross-examine the complainant D about her “sexual activity” on the night of the serious offences;

3. The admission of what is said to be inadmissible recent complaint evidence;

4. A failure to either sever the trials relating to the two complainants or to direct the jury adequately as to the

manner in which evidence from the two separate complainants could be used against the appellant;

5. Three alleged misdirections by the trial Judge;

6. The admission of evidence introduced as to a previous conviction of the appellant that was inadmissible.

[8] In respect of the appeal against sentence, the ground of appeal is that the sentence for the rape of C was manifestly excessive having regard to the accepted pattern of sentencing for rape at the time of that offence.

“Fresh evidence”

[9] The appellant applied to adduce evidence from one Mr Tainui Pomare to the effect that on the night of the rape of D she was in fact with Mr Pomare the entire evening and not at the property of the appellant. However, after cross-examination of the witness, Ms Ord conceded that Mr Pomare’s evidence did not go that far and that the application could not be pursued. We have no doubt that that was a proper concession given not only Mr Pomare’s own evidence, but also the other evidence before us.

Judge’s ruling in respect of application to cross-examine D about her “sexual activity” on the night

[10] The appellant submits that the trial Judge wrongly refused to permit cross- examination of D as to her sexual relationship with Mr Pomare and her activities with him on the evening of the offending.

[11] This ground of the appeal must be put into context. Prior to D being called to give evidence, trial counsel for the appellant is recorded by the trial Judge as wishing to cross-examine D “...concerning a statement that was made to the police by a male cousin of hers, who observed her behaviour at a hotel and later at a night club on the evening that she alleges that the accused offended against her. This witness
evidently says that he observed the complainant [D], ‘getting it on’ as he put it, with a man named Thai in the car park of the hotel and that he later saw her in company with this man, Thai, at a place called Sheepies Night Club.” The Judge went on to refer further to the evidence of the prospective witness.

[12] The Judge recorded that the application was made under s 23A, Evidence Act 1908 and ruled:

So far as that is concerned it is of course permissible for Counsel to explore in cross-examination the fact that the complainant was in this man’s company at the times and the places concerned and to question her as to her sobriety. In terms of s 23(a) it is not permissible to make reference to any sexual activity or relationship concerning this man, Thai, or indeed anyone else other than the accused and questions of that kind accordingly are not permissible.

[13] There is no reference in the ruling to any application to directly cross- examine D as to her sexual experience with Mr Pomare, or how that would be relevant to the facts in issue at trial or to the exercise of the Judge’s discretion. It is, however, implicit in the ruling that counsel sought to cross-examine as to D’s sexual experience with Mr Pomare, as well as to any sexual events on the night. There is nothing to indicate what relevance was suggested for that evidence.

[14] It is now submitted for the appellant that the relevance of the sexual relationship of D with Mr Pomare was three fold:

(a) D was living with the father of her three children at the time of the incident. Police job sheets showed she had not told that man or had lied to him about her sexual relationship with Mr Pomare. It is submitted that this shows that she was prepared to lie about sexual relationships when convenient to her.

(b) There was evidence that D was seen with Mr Pomare on the night of the offending. It was submitted that the language “getting it on” was evidence that she was clearly engaged in sexual activity with Mr Pomare later during the night or in the early hours of the morning of the night in question. It is therefore submitted that it
was more unlikely that she ended up at the appellant’s home by herself and engaged in sexual activity with him.

(c) Cross-examination would have allowed trial counsel to account to the jury for some of the “time gap” in the complainant’s memory. It would rebut the contention that D was unconscious or did not know what she was doing later in the evening before the offending.

[15] It was then submitted that the trial Judge was wrong in that he did not apply the statutory test as to whether the sexual experience of the complainant with Mr Pomare was of such direct relevance to the facts in issue in the proceedings that to exclude it would be contrary to the interests of justice. It is submitted that, rather, he regarded the section as a bar to questioning about such matters.

[16] On this issue, the respondent submits that the Judge’s decision was not clearly wrong. The key issue at trial was whether the appellant raped D and committed unlawful sexual violation upon her. Her sexual relationship with Mr Pomare and what sexual activity might have occurred between them earlier in the night is irrelevant to that issue. Evidence as to the extent of her sexual activity with Mr Pomare on the night in question could not go directly to the credibility of D. Even if she was engaged in sexual activity with Mr Pomare on the night in question, that has no relevance in respect of the offending by the appellant later in the night. It would only have been if the appellant admitted the sexual events but said they were consensual that it could have any relevance, and that was not his case at trial. Any sexual activity of D and Mr Pomare on the night in question would no more have allowed trial counsel to account for some of the “time gap” in the complainant’s memory than the permitted cross-examination as to the extent to which D, lacking sobriety, was in Mr Pomare’s company.

[17] Understandably, the Judge’s ruling during the course of the trial was perhaps not worded with the aptness that might seem desirable in retrospect. However, it is apparent that the Judge was well aware of the nature and the reason for the application for cross-examination and the law applicable to it. He says enough to make it plain he was not satisfied that the cross-examination as to D’s “sexual
activity” with Mr Pomare on the night was of such direct relevance to the facts in issue in the proceeding that to exclude it would be contrary to the interests of justice. In reaching the conclusion that he did, he was exercising a discretion. It has not been shown that his exercise of this discretion was clearly wrong or that he failed to take into account relevant matters or took into account irrelevant matters. There is therefore no substance in this point of the appeal.

[18] We would add, that if, as D’s evidence developed, trial counsel had believed it appropriate to renew the application it would have been open to him to have done so. He did not. There is no allegation in this appeal of any misconduct by trial counsel. And we see none. The primary basis now suggested for the cross- examination of D as to her “sexual activity” with Mr Pomare on the night is that, if established, it would have made it more likely she would have been aware of what happened during the night. That could not have constituted a ground for cross- examination at trial in any event. The reasons for which cross-examination is advanced related not to evidence of sexual activity but of association, and there was no bar to cross-examination as to that. This was not a case of suggested consensual sex between D and the appellant, when the points now made may have been arguable. It was a case of whether non-consensual sex between the appellant and D occurred. Any earlier sexual activity between D and another man had to be irrelevant.

Recent complaint evidence

[19] The recent complaint evidence led in respect of D was from her brother, L, who at the time was living overseas and was telephoned by D a little over two weeks after the offending. It is submitted for the appellant that the complaint was not made to him at the first reasonable opportunity after the offending and was thus inadmissible. It is submitted that D was a mature woman in her late 20s, living in a relationship with the father of her children. She returned home to him after the offending. It is submitted that the delay of two or more weeks does not meet the test of the first reasonable opportunity.
[20] It is accepted by Ms Ord that no objection to the evidence was raised at trial. It is, however, submitted that the recent complaint evidence was so strong and prejudicial that a miscarriage of justice did result.

[21] It is also submitted that both C and D referred to conversations or discussions that had taken place with others in which they had spoken about the appellant’s actions. No detail was given in the evidence as to any of such discussions, merely the fact that they occurred. It is submitted that such evidence offended the general rule that prior consistent statements are inadmissible. It is said that they were in effect repeated statements of recent complaint that did not qualify for admission under the rules relating to recent complaint evidence.

[22] In addition, it is submitted that D’s brother, L was permitted to give inadmissible evidence as to subsequent telephone conversations with D which did not meet the test of recent complaint evidence.

[23] There was a further complaint by the appellant that L should not have been able to give evidence about D’s apparent distress two weeks after the alleged event.

[24] It is submitted, in summary, that the evidence led from C and D and L offended the primary rule of the inadmissibility of prior consistent statements, was so extensive as to be highly prejudicial to the appellant, and led to a miscarriage of justice.

[25] In respect of these issues the respondent submits, first, that there is no allegation of incompetence on the part of trial counsel, who made no objection to any of the evidence. Secondly, it is submitted that the complaint by D to L can be said to be at the first reasonable opportunity, given the factors surrounding the offending and D’s state of mind and the time following it. D gave evidence of her being so emotionally upset that she was incapable of looking after her children and too ashamed to mention what had occurred to anyone.

[26] The respondent submits the evidence of the complainants of speaking to people about what occurred, without giving any details, was permissible. It is
submitted that the evidence was relevant in explaining everything leading up to the two sisters going to the police and the timing of their complaints and also as to what caused C to make her complaint. In addition it is submitted that there was no detail that could be said to be self-serving statements of the nature of improper complaint evidence.

[27] The respondent agrees that L should not have been permitted to give hearsay evidence in relation to latter events, but submits that some of that had come out in evidence from other sources and that, in any event, it was too peripheral for any prejudice to arise from it.

[28] The respondent correctly submits that L’s evidence about D’s apparent distress two weeks after the alleged event was an observation of behaviour which was admissible: R v R (CA354/01 15 April 2002). We reject Ms Ord’s suggestion that such evidence can only relate to the period immediately after the offending. She could offer no principled argument as to why that should be so.

[29] We are satisfied that in the circumstances of the offending and of the relationships and D’s distress following the offending the suggestion that D did not complain to L at the first reasonable opportunity is unfounded. It is particularly difficult for the appellant to sustain this point when there was no cross-examination of D upon the issue, either in a voir dire or at trial. Such evidence as D gave was totally consistent with her complaint being made at the first reasonable opportunity. When there were thoroughly understandable reasons as to why D would not complain to those close to her in her home environment, a delay of a fortnight in respect of offending of the particular nature is readily explicable. It was accordingly thoroughly understandable that appellant’s trial counsel should not seek to pursue this issue.

[30] The references by the complainants as to whom they had spoken was neither self-serving evidence nor evidence of recent complaint. It was relevant evidence explicable as to the course of events that led to the complaints being made to the police and the delay in making them. The evidence did not advance the complainants’ stories. There was no endeavour to call the persons to whom these
statements were made. The evidence was really just part of the narrative of events leading to the complaints to police. Trial counsel for the appellant, sensibly, did not object to the evidence, as in the context of the trial it was almost irrelevant. In any event it could not be said to be evidence that could have resulted in any miscarriage of justice in relation to the appellant.

[31] Similar observations apply in respect of the subsequent conversations between D and L after her first complaint. It added nothing to the Crown case. Trial counsel, wisely no doubt, did not take any issue with the material, which was peripheral and irrelevant.

[32] We have already noted that L’s evidence as to D’s apparent distress a fortnight after the events was admissible.

[33] It should be noted that the trial Judge gave the usual appropriate directions in respect of recent complaint evidence.

[34] We are satisfied that there is nothing in the points raised with the appellant under this head.

Severance

[35] It is submitted for the appellant that there should have been an application by trial counsel for severance, although as already noted there is no suggestion in this appeal that trial counsel has made any radical error in the trial. It is, in the alternative, submitted there should have been a proper direction by the trial Judge as to the way in which the evidence from the two separate complainants could be used against the appellant, akin to that applicable where similar fact evidence is involved. It is submitted that such a direction would have ensured that the case of each complainant against the appellant was considered separately, and that evidence in relation to one or other of the complainants would not be used to assist the other.

[36] Particular reliance is placed upon what was said by this Court in R v W
[1995] 1 NZLR 548:

Counts arising from incidents unrelated in time or circumstance are not to be tried together unless evidence as to one is relevant to another to an extent that its probative effect outweighs its prejudicial effect.

[37] It is, however, accepted for the appellant that that does not mean that similar fact evidence is necessary before trials can be held together. Rather there needs to be evidence as to one relevant to the other.

[38] We accept the submissions for the respondent that it was in the interests of justice for the two complaints to be heard together. C was a witness in relation to the events of the night of the offending against D. Both witnesses gave evidence as to family relations and family occasions, which was relevant to both of their complaints. The explanation as to why they eventually determined to go to the police was inter-connected. There was thus evidence from each relevant to the trial of the other. Its probative effect outweighed its prejudicial effect. It would have been artificial and contrary to the interests of justice for the complaints of C and D to be heard separately. There were indeed certain advantages to the appellant in being able to allege that the sisters must have ganged up against him. It was therefore understandable that his trial counsel should not seek severance.

[39] The trial Judge told the jury:

You must be careful where evidence relates only to one count not to use it in considering any of the others. It is wrong to prop up one count with evidence that relates only to another or to reason that because you find the accused guilty or not guilty of one count then he must be guilty or not guilty of all of them. You need to look at them separately and look at what evidence there is in relation to each count one at a time. It is helpful perhaps to think of this process in terms of holding a separate trial for each count. We have had really six separate trials all being dealt with together. So that means you need to isolate the evidence and the issues of law that are relevant to each count and make the decision on them one at a time.

[40] The Judge enlarged on that. He made plain that while the jury could look at the whole of the evidence in respect of decisions as to credibility, when they were looking at the individual counts and the physical evidence that supports what was alleged, that the jury must look at them one at a time. There was thus clear advice to the jury that not only could the evidence of one complainant not be used to assist the other, but also the evidence as to one event could not be used to assist in respect of another event relating to even the same complainant. It is apparent that the jury well
understood this process, having regard to the fact that the appellant was acquitted in respect of two of the charges relating to C.

[41] We are accordingly not satisfied that there was any miscarriage of justice in relation either to the holding of the trials together or the directions given by the trial Judge.

Summing up

[42] The appellant complains as to three matters relating to the summing up, other than those already traversed and another yet to be traversed.

Direction on consent and belief on reasonable grounds of consent

[43] The appellant submits that the Judge misdirected the jury on these topics, particularly in respect of the count relating to D in paragraphs [40] and [41] of the following directions:

[38] The second thing that the Crown has to establish is that that penetration occurred without the consent of the woman. The third thing that the Crown has to prove is also related to consent and that is that the penetration occurred without the man having a belief based on reasonable grounds that the woman did consent. Sometimes we might think of rape as being something that is accomplished by force or violence. That is sometimes the case but it is not necessarily so. The essence of rape is intercourse without consent. When it comes to that any consent given must be one which is freely given.

[39] What I am about to say to you in relation to consent applies as a defence not only to the charge of rape but to all the charges that the accused faces. The defence raised is not one of consent and so consent is not really going to be a large issue for you but as the prosecutor said the Crown has to demonstrate for you that there was no consent or no consent on reasonable grounds. So you need to look at the facts and exclude that if you are to convict the accused. A consent in law for the purposes of this sort of offending is a freely given consent and it is important to distinguish between a consent that is freely given on the one hand and submission to what a woman may regard as unwanted but unavoidable. For example, a submission by a woman because she is frightened of what might happen if she does not give in is not a true consent. Submission because she feels powerless or trapped or exhausted is not a true consent. The fact that a woman does not protest or physically resist or that she ceases to do so is not

of itself to be taken as consent. Consent can be conveyed by words or conduct or by a combination of both.

[40] The Crown must show an absence of consent and as well as that the Crown must show that the act was done without the accused having a belief on reasonable grounds that the complainant did consent. It is not for the accused to show that he did have such a belief. It is for the Crown to show that he did not or could not have had such a belief. One way of satisfying you about that might be to show that the accused himself did not have any belief in consent. Another way of satisfying that might be to show you that on the evidence overall no reasonable person in the accused’s shoes could have thought that the complainant was consenting. That is the way the case is really presented to you by the Crown here that if these things took place then they were in circumstances where no consent was given and none could reasonably be inferred by a reasonable person in the accused’s shoes.

[41] When you are looking at that second limb of consent, whether the accused believed on reasonable grounds in consent, there are two aspects of that. Firstly did the accused have such a belief? That is a matter subjected to him and there is no evidence to show that he did because, of course, he says these things did not happen. The second element is were there reasonable grounds for him or anyone else to have such a belief. That is a matter for you, the jury, to apply your common sense to and you say well if he was in this situation how could he have believed in consent or you may think his situation was equivocal, perhaps somebody might have believed the consent but that is a matter for you applying your minds to rather than putting yourself in the accused’s shoes.

[44] It is submitted for the appellant that the Judge should have directed the jury to put the appellant’s evidence to one side and ask what evidence there is to prove beyond reasonable doubt that he did not believe on reasonable grounds that D in particular was not consenting. It is submitted that there was no evidence that could be used to prove beyond reasonable doubt that he did not have belief on reasonable grounds that D was not consenting.

[45] It is submitted that D’s evidence of her conduct when she realised the sexual act was taking place did not assist the jury to resolve these questions and that it was equivocal.

[46] We accept the submissions for the respondent that there was no error in the paragraphs complained of in the summing up. The paragraphs conform to the law. Despite the submissions for the appellant, there was evidence from D from which the jury were entitled to draw a conclusion that the appellant could not have believed on reasonable grounds that she was consenting. D gave evidence that she was asleep, until she heard the appellant yelling, and when she was aware of what was
happening she was scared, closed her eyes and pretended to be still asleep. She said that she did not know what to do and what the appellant would have done if he knew she was awake and if she had resisted. On that evidence D was asleep throughout the act. Thus there was no basis upon which the appellant could believe on reasonable grounds that she was consenting.

Inferences

[47] A written submission as to the directions on this topic was properly abandoned.

Distress of complainants

[48] It is submitted for the appellant that the trial Judge failed to intervene or properly direct the jury on alleged prosecutorial misconduct in the cross-examination of the appellant. It is alleged that the cross-examination required the appellant to give an explanation for the distress of each of the complainants and that that questioning was improper.

[49] With that background it is submitted that the Judge should not have repeated the Crown’s assertions in his summing up in the following way:

...if they were making these things up then for what reason. No reason has been suggested why they should wish to make such outrageous and damaging allegations against the Uncle. The evidence was the fact that family relationships had always been cordial up until this came out. The Defence of course, is not required to give an explanation for why they would do this but you might ask yourselves the Crown says why would these women go through the very public exposure of these personal things and put themselves to that ordeal if it were not true.

[50] It is submitted for the appellant that the submissions on behalf of the Crown should not have been permitted and should have been corrected by the Judge and not reinforced. It is submitted that the only submission permitted of the Crown is that the appellant knew of no reason why the complainants would make up the allegations. It is submitted that there is no onus to show any motive or reason on the part of the complainant for bringing a complaint such as those in the present case. It
is submitted that the error in the Crown’s handling of the case was reinforced by the Judge in his summing up.

[51] These submissions are made in reliance upon what was said by this Court in the cases of R v T [1998] 2 NZLR 257 and R v M (2000) 18 CRNZ 368. Those cases, it is submitted, make clear that while an accused can be asked why a complainant would have falsified an allegation, the question must be confined to matters within the knowledge of the accused. The question should not be presented in a way that would deflect or distract the jury from the central issue as to whether the Crown had proved the essential elements of a particular charge beyond reasonable doubt. There should be no suggestion that there was an onus on an accused to advance a credible answer.

[52] It is submitted that the Crown submissions should not have been repeated by the Judge in the way in which they were, as that gave them more credence. It is submitted that there should have been a strong direction from the Judge about both the form of the questions and the Crown submissions, namely, that an accused can only give evidence about matters within his knowledge, that it is not incumbent upon the accused to provide an explanation as to why a complaint has been made, and that it is possible for someone to be falsely accused without knowing why.

[53] The respondent, in replying to the submissions, first takes issue with the nature of the cross-examination criticised by the appellant. There can be no dispute that both C and D were distressed when they gave their evidence. The Judge in his sentencing remarks refers to them as “...distressed a pair of witnesses in a sexual offending case as one is likely to run across”. The Crown prosecutor cross-examined the appellant, not to give an explanation for their distress, but as to whether he accepted that they were distressed and whether the distress was linked to their description of the sexual offending.

[54] We accept, as is submitted for the respondent, that at no stage was the appellant asked to give an explanation for the distress of the complainants. Rather it was being put to the appellant that their distress was genuine and the incidents being described happened. In the case of C, the appellant said that he accepted that her
distress could be genuine but that her account of events was fictitious and could not relate to what she was describing. In the case of D, he described her distress as not being genuine and that it could not relate to events which had not happened.

[55] Not only was there no questioning as to the reason for the distress of the complainants but there was no questioning contrary to the spirit of R v T or R v M. The questioning related to the observed distress of the complainants and the accuracy of their account of events. It did not require the appellant to give an explanation for the distress of the complainants. Nor did it require the appellant to undertake any onus to show any motive on the part of the complainants or any reason for bringing their complaint. The questioning never got to the stage where any consideration of it in respect of the principles discussed in R v T and R v M is required.

[56] When it comes to what the Judge said in his summing up, the statements, already cited above, were in the context of summarising the Crown case. There can be no misdirection in summarising the Crown case in the way that occurred, particularly when it was balanced by making it clear that the appellant was not required to give an explanation for why the complainants would wish to make allegations against him. The Judge was not lending himself to the Crown submissions but merely summarising them with balance in favour of the appellant, by making it clear that there was no onus on the appellant in respect of that.

[57] When it came to the summary of the case for the appellant, the Judge said this:

[79] What is suggested to you there by the accused is that perhaps [D] has got into something with this other person or some other person that she is not proud of and that she is accusing the accused here of doing these things to her in order to protect her from the adverse consequences of some other behaviour. There is no direct evidence at all that suggests that that is the case but the only thing you have got is that she was at this night club with somebody else at about midnight evidently sober at that stage and the accused was not there.

[58] Overall it is clear that the Judge was endeavouring to hold the balance properly between the Crown and the appellant, and that nowhere did he permit the spirit or the principles of R v T and R v M to be contravened. Rather in the passage criticised in his summing up on behalf of the appellant he upheld those principles.

Evidence as to appellant’s previous convictions

[59] The Crown did not lead evidence of the appellant’s previous conviction. However, in his evidence-in-chief the detective in charge of the case gave evidence of a series of questions by him of the appellant and of the appellant’s answers, which he recorded in his notebook. They included, “I said that’s fine, do you have a lawyer? He said, I did use one a while ago for the other thing.”

[60] The appellant and his trial counsel were aware of this evidence, as it was part of the deposition evidence. It seems trial counsel for the appellant and the Crown prosecutor agreed the evidence would not be led at trial but that the officer in charge of the case was not advised of that. Thus the evidence was given inadvertently and not deliberately. We say it seems that was the case as, although that is Ms Ord’s understanding from the appellant’s trial counsel, Ms Guy has had no opportunity to check that with the Crown prosecutor.

[61] In any event, when the evidence came out, trial counsel for the appellant did not seek any directions from the Judge or seek to see the Judge about the matter before cross-examining the detective. It was only as a result of that cross- examination that it was disclosed the appellant had a previous offence.

[62] The appellant’s trial counsel, in his cross-examination of the detective, referred to the matter now complained of and asked the questions, “Just to be clear on that he does have one previous conviction, doesn’t he? Yes, I believe so. One, just simply one? Yes. And it is nothing to do with anything of a sexual nature? No. Of any type, any degree whatsoever is it? That’s correct.”

[63] In re-examination the Crown prosecutor elicited that the previous conviction was for receiving property over $5,000.

[64] In his summing up, the trial Judge specifically addressed this issue in the following way:

[24] There are one or two things just about the evidence in a general way that I need to say to you before I deal with the charges that the accused faces.

Firstly you have heard – it was in fact led by the accused’s own Counsel – that the accused has a previous criminal conviction for receiving stolen property. That is not usually something that is exposed to the jury. It is not usually made known to a jury if a person has anything of that sort in his background and no doubt the reason that was led was to emphasis for you that there is no indication that this man has any previous convictions to deal with sexual matters. I have no doubt that is why his defence Counsel raised the matter at all.

[25] What I want to say to you about that is that you must not assume that the accused is guilty or that he has not told the truth simply because he has that previous conviction. The evidence about his past is not relevant to the likelihood of him having committed this offence and indeed no doubt the reason it was led was to show the problems he has had have not been of the character that he now faces. That matter of his previous conviction is relevant solely to the issue of his credibility, that is to say whether or not you believe his evidence. It does not make it more likely that he did it or not. It is something you can put in the mix when you decide whether he is being honest with you in the evidence that he has given. That is the only relevance of that.

[65] It is submitted for the appellant that the detective’s evidence should not have been led by the Crown or permitted by the Court in that it was inadmissible and clearly prejudicial to the appellant.

[66] There is no substance in the submissions for the appellant under this head. The officer in charge did not draw attention to any prior conviction of the appellant. The indication by the appellant that he did use a lawyer for “the other thing” did not indicate the commission of a criminal offence. It could equally have referred to some other matter for which the appellant had sought legal advice. It is apparent that the appellant’s trial counsel, against whom there is no allegation of error, deliberately introduced the appellant’s prior conviction as a trial tactic. There were other courses open to him. He could have seen the Judge. He could have ignored the ambivalent statement by the appellant. He could simply have asked whether the other matter was a sexual one. The Crown did not dictate the course he adopted.

[67] Once the appellant’s trial counsel had introduced the conviction it was of course open to the Crown prosecutor to determine what the conviction was for and the circumstances, where he knew it was relevant to the issue of credibility, which the appellant had put in issue. The Judge’s direction in his summing up in respect of the evidence was entirely appropriate and in accordance with law.
[68] We are not persuaded of either prosecutorial wrongdoing or error by the trial Judge. Nor can we see any possible injustice to the appellant as a result of what occurred.

Appeal against sentence

[69] The appeal against sentence is directed solely to the sentence of nine years imprisonment for the rape of C. At the time of the commission of that offence, the maximum term of imprisonment was 14 years and not 20 years. It is submitted for the appellant that the sentence should have accorded with the five year term of imprisonment that was the starting point at that time in respect of a contested charge of rape.

[70] There is no dispute that at the time that C was raped the starting point for the appellant’s sentence would have been five years imprisonment. The Judge was well aware of the available maximum penalties and specifically noted that the maximum penalty in respect of the rape of C was 14 years imprisonment. He further noted that although in his view that earlier offending was probably more grave than the latter offending it was amenable only to the lesser maximum penalty. In fixing the sentence at nine years imprisonment the Judge took into account the aggravating factors, including the breach of trust, the offending in respect of the two sisters, and the age of C at the time of the offending. The Judge identified no mitigating circumstances, although it is now suggested that, notwithstanding the prior offence of dishonesty, they included the fact that the appellant was a first offender. That is clearly wrong.

[71] Although it is perhaps questionable that the aggravating circumstances relating to the offence against C would have resulted in a sentence of nine years at the time of the offending, they undoubtedly would have resulted in a sentence well in excess of five years imprisonment. As the question of the particular sentence for that offence is formal rather than real, and as the sentence was undoubtedly close to the range open to the sentencing Judge, we do not intend to interfere with it. It perhaps could be said that the sentence was excessive but we are not satisfied that it was so
manifestly excessive that the Court should be interfering with it in the circumstances already outlined.

Result

[72] The application for leave to adduce further evidence and the appeals against conviction and sentence are dismissed.

Solicitors:

Sladden Cochrane & Co, Wellington for Appellant Crown Law Office, Wellington