R v PEYROUX [2004] NZCA 9 (1 March 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA312/03THE QUEEN

v

JEAN DOMINIQUE PEYROUX

Hearing: 24 February 2004

Coram: Hammond J Laurenson J Doogue J

Appearances: J Ablett Kerr, QC, and I M Stewart for the Appellant
B J Horsley for the Crown

Judgment: 1 March 2004

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

Introduction

[1] The appellant was convicted following trial by jury in the District Court at Dunedin on two counts of indecent assault. He was sentenced to 200 hours community work. He now appeals against his convictions. Four grounds are advanced by the appellant in support of his appeal. They are:

(a) Trial counsel failed to cross-examine the Crown witnesses adequately;

(b) Trial counsel failed to follow instructions to call certain witnesses;

(c) Owing to the appellant’s medical condition, trial counsel had an elevated duty in the conduct of the trial which he failed to meet; and

(d) The Judge failed to adequately sum up to the Jury on similar fact evidence.

[2] The appellant and two of his sons have filed affidavits relating to their dealings with trial counsel and the conduct of the trial. A waiver of privilege has been filed and trial counsel has responded to the allegations contained in the appellant’s affidavits in affidavit form. A further affidavit in reply has been filed by the appellant. The appellant’s trial counsel was cross-examined.

Background

[3] The appellant was a Dunedin medical practitioner born on 25 May 1937. Ms B and Mrs W were long-standing patients of his practice. Ms B was aged 35 years old. Mrs W was 82 years old.
[4] On 13 May 2003, Ms B went to see the appellant as she had injured her knee and hand. Her evidence was to the following effect. The appellant smelt her neck, saying that sometimes he could sense what was wrong with people that way. He then knelt between her legs and examined her knee. He said, “I like being between your legs”. He told Ms B that he was single, and hinted that they should go out. He also asked Ms B if she had her period. As she went to leave, the appellant got between her and the door, put his arms around her and rubbed himself up and down against her vagina. He was aroused. This went on for at least 1-2 minutes. He also rubbed against her vagina with his hands. She later complained to a friend. The appellant’s evidence was that the earlier events occurred but were misinterpreted and that the latter sexual advances did not occur.
[5] On 19 July 2003, Mrs W visited the appellant about swollen ankles and feet. Her evidence was to the following effect. They had an argument when he proposed to do nothing for her. He then grabbed her and pulled her towards him repeatedly. He said to her, “What you need is a good bonk”. He rubbed against her and she felt his erect penis. Mrs W claimed to have rushed out of the office, slamming the door behind her. The appellant’s evidence was that the incident never occurred, although W did visit the surgery that day.
[6] At the time of trial, the appellant was diagnosed with the onset of dementia. He was adjudged to be fit to stand trial. Initially, he was to be represented by a senior Dunedin practitioner but, after that practitioner’s appointment as a District Court Judge, he was represented by another experienced trial counsel.
[7] At trial, the Crown called four witnesses: the two complainants; the husband of one of the complainants, Mr W; and a recent complaint witness in respect of Ms B, a Mrs H. The defence called only the appellant. The Crown then applied successfully to have Ms B, Mrs W and Mr W recalled to rebut evidence given by the appellant but not put to the witnesses, that the appellant had given Ms B and Mrs W ACC sexual abuse cards.

The Appeal
Failure to cross-examine

[8] Ms Ablett Kerr, for the appellant, submits that trial counsel failed to adequately cross-examine the Crown witnesses on the following matters:

(a) The possibility of collusion by the complainants. Although initially trial counsel had no information on which to base this line of examination, following Mrs W’s evidence in re-examination that she had meet Ms B before the trial after becoming aware of her complaint from the police, Ms Ablett Kerr submits that this line should have been explored. In enlarging on this submission orally, emphasis was placed on the failure of counsel to challenge Mrs W’s motivation for bringing her complaint. It was submitted she had been told of Mrs B’s complaint by the appellant but was not cross-examined on this being the possible source of her own complaint.

(b) The possibility that the complainants were motivated by financial need and gain to make their complaints. The affidavit evidence from the appellant is that he instructed trial counsel that the complainants were motivated by the possibility of receiving ACC grants for sexual abuse. There was also a history of unpaid accounts by the complainants.

(c) That both complainants were unstable and unreliable witnesses.

(d) That Mrs W was under the power and influence of her husband and may have been pressured by him to make a complaint given that he was also aware that a previous complaint had been made. It was submitted that there was sufficient evidence to make cross-examination of Mrs W on this topic fruitful.

(e) That Mrs W did not and could not have slammed the door to the surgery as she left and that Mr W could not have heard the door slam. This, it is said, went to credibility.

(f) That Mrs H had convictions for dishonesty.

(g) The circumstances in which the recent complaint evidence was received.

(h) The appellant’s usually familiar and causal way of dealing with certain groups of his patients.

(i) The failure to cross-examine the three Crown witnesses who were recalled.

[9] Ms Ablett Kerr submits that, given the information available to trial counsel from his discussions with the appellant and his family, trial counsel should have covered these areas. A crucial aspect of the trial was credibility. This was particularly so, Ms Ablett Kerr submits, given that as a result of the appellant’s mental difficulties he was unlikely to prove to be a particularly good witness in his own defence. Ms Ablett Kerr submits that while it is not possible to say that the appellant would have been acquitted had cross-examination been conducted adequately, the “various dimensions of the case” do not give the appearance that justice has been done: R v Hills CA157/02, 11 November 2002.
[10] Mr Horsley, for the Crown, submits that the appellant raises questions of trial tactics, not radical error. Trial counsel, in his affidavit, asserts that his instructions were to run a case based on the following theories:

• Ms B was an unreliable witness due to various dependency issues and had fabricated a complaint because she was angry at the appellants for not providing her with the medication she believed she needed; and

• Mrs W was upset after she left the surgery because she did not receive pain relief for the problems she was experiencing with her ankles. She had, over the weekend, got worked up about it and formed the mistaken belief in her own mind that she had been subjected to the indecent touching she complained of.

[11] Mr Horsley submits that, given this theory of the case, the matters raised by the appellant were either irrelevant or were covered in evidence sufficiently to enable relevant submissions to be made in closing. Specifically:

(a) Any allegation of collusion between the complainants was unsustainable. Both witnesses gave evidence consistent with their statements, which were given before they had met.

(b) The allegation that the complainants were motivated by a desire to obtain ACC compensation did not form part of the defence theory of the case, particularly in the case of Mrs W. In cross-examination, Ms B denied applying for ACC money and this was reinforced in her evidence on recall. Mr Horsley submits that in the face of those emphatic denials, there was little point in pursuing cross-examination on those issues.

(c) Both complainants were cross-examined extensively on the reliability of their evidence. There was sufficient evidence before the Court on which to basis a submission that both witnesses were unreliable.

(d) The allegation that Mrs W was under the influence of Mr W and had been influenced by him to complain was not part of the theory of the case. It was contrary to Mrs W’s evidence that she had a caring and loving husband. And, it was unsupported by any evidence: trial counsel being unaware that Mr W knew of previous complaints against the appellant before the incident involving his wife.

(e) The issue of slamming the door was largely irrelevant.

(f) Trial counsel effectively cross-examined on the recent-complaint issues. Much was made of the fact that Ms B had not complained to her sister and had let her sister attend an appointment with the appellant directly after the incident.

(g) Both complainants were questioned about the appellant’s casual behaviour towards his clients.

(h) There was no point in cross-examining the recalled witnesses as the ACC claims were not central to the defence theory of the case and there was no information with which to challenge their assertions that they had not received ACC claim forms.

Failure to call witnesses

[12] Ms Ablett Kerr submits that trial counsel failed to follow instructions to call the following witnesses:

• The appellant’s son, who was the surgery’s practice manager, to give evidence as to the alleged slamming of the door and as to the financial dealings of the complainants with the appellant.
• Past and present nurses, to give evidence about both complainant’s history of bad debt and well as the relaxed way in which the appellant ran his surgery.
• Long-standing patients of the appellant to give evidence of the appellant’s good character.

[13] Ms Ablett Kerr submits that the calling of additional witnesses in support of the appellant’s evidence was necessary as the appellant was unlikely to present as a compelling witness due to his medical disability. Calling character witnesses could have significantly assisted the credibility of the appellant, particularly given his “rather eccentric nature and approach to treating patients”. Ms Ablett Kerr submits that this case is analogous to R v Hills (CA 157/02, 11 November 2002), in which a miscarriage of justice was found on the basis of a failure to call character witnesses where credibility was at issue.
[14] Trial counsel denies being instructed to call witnesses. Although the possibility of calling witnesses was discussed, no firm instructions were ever given to undertake that course of action. Mr Horsley also seeks to distinguish the present case from R v Hills. In that case, says Mr Horsley, “would say” briefs were provided from the character witnesses in order that this Court could consider whether what those witnesses would have said would have altered the outcome. In this case, the Court is simply asked to speculate on what the evidence might have been. In addition, Mr Horsley says, the appellant’s previous good character was never in issue – it was acknowledged by the Crown and its witnesses.

The appellant’s special condition

[15] Ms Ablett Kerr submits that, given the appellants degenerative medical condition, trial counsel had a duty to ensure that he received as fair a trial as was possible. In those circumstances, Ms Ablett Kerr says, to simply rely on a straight credibility contest between the two complainants and the appellant was a failure to recognise the needs of this case.
[16] Mr Horsley submits that trial counsel did his best in difficult circumstances, given the strong prosecution case and the appellant’s “bizarre behaviour, earlier admissions and answers he gave in evidence”. The defence run by trial counsel that despite some eccentric behaviour the conduct complained of was misinterpreted was the only realistically available defence.

Summing up on similar fact evidence

[17] The Judge first instructed the jury that (at para [13] of the summing up):

You must ... isolate the evidence that relates to each charge and decide it solely on that evidence. You should also be wary about taking some sort of global approach.

[18] The Judge turned to the use of similar fact evidence (at para [14] of the summing up). The Judge indicated that the Crown was relying on the similarity of the offending against the two complainants. The Judge summarised the similarities relied on by the Crown. He then said:

If you are satisfied about that, that is, that there are those similarities in the accounts. And, if you are also satisfied that the two complainants, that is, Mrs B and Mrs W, have not colluded or got together to concoct false but matching allegations, then it would be open to you to conclude that the evidence of one complainant about what happened to her is also related to or supports the evidence of the other complainant and vice versa. In other words, their evidence on those matters points to a pattern of conduct, which may reinforce or corroborate what each of them has said. That is something for you to consider.

If, on the other hand, you are not satisfied that there is a sufficient similarity between the two versions of events to provide that degree of mutual support, then you must guard against any tendency to think along the lines that oh well, he had a tendency to behave badly, therefore he must be guilty.

[19] Ms Ablett Kerr submits that the Judge’s directions did not adequately inform the jury of the degree of similarity that was required before they could use one case to support the other, namely a “discernible pattern in the detail”: R v Sanders [2001] 1 NZLR 257, 261. The Judge also did not adequately identify the evidence that established such a pattern, speaking rather in generalities, and did not identify that part of the evidence was dissimilar.
[20] Ms Ablett Kerr also submits, in accord with the principles expressed in R v M [1999] 1 NZLR 315, that the Judge should have directed that Jury that they must accept the evidence of one of the complainants before her evidence could be used to assist in determining the credibility of the other.
[21] Mr Horsley submits that, in the context of a trial heard over the course of a single day and where the focus was on the truth or otherwise of the allegations and not so much their use as similar fact, the direction by the Judge was adequate. The Judge did, albeit briefly, detail the nature of the similarities between the evidence of the two complainants and gave appropriate directions on the use of those similarities.

Discussion

[22] The issues for the Court are whether there has been a miscarriage of justice or at least a real risk of a miscarriage of justice as a result of a radical mistake by counsel in the conduct of the defence (see R v Pointon [1985] 1 NZLR 109) or an error of law resulting from a misdirection by the trial Judge. We deal with the appeal under the same subheadings as counsel have made their submissions.

Ground one: failure by trial counsel to cross-examine the witnesses adequately or at all

[23] We do not intend to address each of the 12 matters relied upon for the appellant under this head. The appellant has not satisfied us in respect of any of them that there is any error on the part of trial counsel given the reasonable strategy adopted for the defence of the appellant. In the absence of any evidentiary basis for cross-examination in respect of such matters as collusion by the complainants, Mrs W being motivated to complain because of Mrs B’s complaint, a financial motivation for the complaints, or an instability and unreliability on the part of the complainants, cross-examination beyond that adopted at trial was more likely to be to the detriment of the appellant than his advantage. It was so fraught with risk counsel could be excused from entering upon the perilous courses urged upon us by Mrs Ablett Kerr. In respect of other matters, such as the relationship between the elderly complainant and her husband, and whether the elderly complainant slammed surgery doors in a way which could have been heard by her husband, no good purpose could have been served by cross-examination. The character of one of the witnesses as to recent complaint and the circumstances in which the recent complaints were allegedly received were of little moment in the context of the trial as a whole. The problem for the appellant was that in respect of some of the allegations of the younger complainant he admitted her evidence but attempted to put a different cast upon what had occurred. While he denied the allegations of the elder complainant, trial counsel pursued the issue of her credibility in accordance with the trial strategy as far as was appropriate. Trial counsel also pursued the appellant’s explanation of the events in respect of the younger complainant as far as was appropriate having regard to the trial strategy.
[24] We can see no basis for any suggestion of radical error in respect of the cross-examination of the complainants or the recent complaint witnesses. Trial counsel was to a large extent put in an impossible position by the appellant raising matters inconsistent with the trial strategy. If he had pursued those, he inevitably would have diminished rather than strengthened the trial strategy. In the absence of a solid evidentiary basis to support them, he was wise not to pursue them.

Ground two: failure to call witnesses

[25] In the absence of any instructions to trial counsel to call witnesses and of any briefs of the witnesses who it is said should have been called, it is difficult to take this ground of appeal seriously. In part it relates to character witnesses. However, the appellant’s character was not in issue and his good character was accepted by the complainants and by the Crown. The trial Judge gave a proper direction on this topic. To the extent that possible evidence relates to matters not essential to the defence strategy at trial, the present submissions are irrelevant. The defence strategy at trial was totally consistent with the evidence of the complainants and did not require further evidence. There is no evidence before us of any matter where material assistance could have been given to the appellant at trial. There is thus no hint of any error, let alone any radical error, by trial counsel under this head.

Ground three: the appellant’s special condition

[26] This is simply an attempt to bolster the arguments under the earlier two heads. It is clear that trial counsel was only too well aware of the need to protect the appellant against himself. However, it was the appellant and not his counsel who was responsible for what he told the police and what he said in evidence, much of which could have only been likely to have reinforced the jury’s decision to accept the evidence of the complainants. There is simply nothing to show that trial counsel erred in his conduct of the trial by reason of any matter relating to the special medical condition of the appellant.

Ground four: the summing up on similar fact evidence

[27] As already noted, the appellant makes two complaints about this aspect of the summing up.
[28] In respect of the first of those complaints, that the Judge did not adequately inform the jury of the degree of similarity that was required before they could use one case to support another, we are satisfied that the summing up was adequate in the context of the trial.
[29] However, there is arguably substance in the second material submission for the appellant under this head, namely that the Judge failed to direct the jury that they must accept the evidence of one of the complainants before her evidence could be used to assist in determining the credibility of the other.
[30] That submission is consistent with decisions of this Court in R v Kuru (CA 155/96, 17 October 1996), R v W [1995] 1 NZLR 548 and R v M [1999] 1 NZLR 315 in particular.
[31] However, those cases have been doubted on this point in a later decision of this Court in R v Sanders [2001] 1 NZLR 257. The reasoning in Sanders is supported by various English decisions, including R v H [1994] 2 All ER 881 and [1995] 2 AC 516 and R v Z [2000] 3 All ER 385.
[32] Given the contest between the two lines of cases, this is appropriately a question for a full Court. When the issue next arises in this Court, counsel should apply accordingly.
[33] Fortunately, we do not find it necessary to resolve the issue on this appeal. We are satisfied that this is not a case where a similar fact argument should ever have been permitted and that the issue should never have been put to the jury.
[34] In this case there were no distinct similarities between the stories of the two complainants except that they were patients of the appellant and that some form of sexual advance with an element of rubbing was made by the appellant during the course of an appointment with him. There were none of the normal similarities relied upon in this area. There were no similarities of language or action. There were no similarities between the women in age or appearance. There was an insufficient basis for the Judge to permit the Crown to rely on the principles relating to similar fact evidence. Thus he erred in his summing up on similar fact evidence as the jury should not have been permitted to view the evidence in that light.
[35] Thus we take the view that this was a case where the trial Judge erred in law in permitting the Crown to rely on similar fact evidence.
[36] We note that there are two other areas, not relied upon by the appellant, where we consider the trial Judge arguably erred in law.
[37] First, we question whether the Crown should have been permitted to call rebuttal evidence in the way that it did. At the very most the appellant’s evidence about giving the complainants ACC claim information cards might have called for direction. To permit rebuttal evidence from three witnesses when there had been cross-examination, albeit limited, on ACC claim motivation was unduly prejudicial to the appellant. The evidence of the appellant merely enlarged upon the matter raised. It was not a new material matter. Rebuttal evidence is to be permitted sparingly, and this was not a case that necessarily required it: see Cross on Evidence, New Zealand loose-leaf edition, para 9.74.
[38] Secondly, the Judge did not summarise the cases for the Crown and the appellant even briefly. It must therefore be arguable that he did not conform with the principle that the Judge put to “the jury clearly and fairly the contentions on either side, omitting nothing from his charge, so far as the defence is concerned, of the real matters upon which the defence is based”: R v Clayton-Wright (1948) 33 Cr App R 22, 29, approved in R v Ryan [1973] 2 NZLR 611 and R v Foss (1996) 14 CRNZ 1.
[39] Given these matters, we do not think it proper that the convictions be allowed to stand.

Decision

[40] The convictions are quashed and a new trial is ordered. It will be a matter for the Crown in the light of all the circumstances, including the appellant’s health and the age of Mrs W, whether one is pursued.

Solicitors:
Crown Law Office, Wellington for the Crown