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Court of Appeal of New Zealand |
Last Updated: 20 January 2014
PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED
BY S 139 CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA70/05
THE QUEEN
v
WAYNE ANDREW HERBERT ADAMS
Hearing: 22 August 2005
Court: O'Regan, Potter and Doogue JJ Counsel: J H M Eaton for Appellant
J C Pike and I R Murray for Crown
Judgment: 5 September 2005
JUDGMENT OF THE COURT
A Leave to appeal is granted.
B The appeal against conviction is allowed. A retrial is
ordered.
REASONS
(Given by Potter J)
R V WAYNE ANDREW HERBERT ADAMS CA CA70/05 5 September 2005
Table of Contents
Para No
Introduction [1] Grounds of Appeal [6] Background [7] Appeal against Conviction [23] Consent [24] Onus of Standard of Proof [51] Motive to lie [65] Recent complaint [75] Inferences direction [80] Complainant’s distress [83] Criticism of trial counsel [86] Cross-examination by prosecutor [89] Conduct of trial counsel [93] Failure of trial Judge to appropriately deal with risk
of jury experimentation with condoms [112]
Appellant’s remand in custody [116]
Result
[118]
Introduction
[1] Following trial by jury Wayne Andrew Herbert Adams was convicted in
the District Court at Timaru of one charge of being
unlawfully in a building,
two charges of rape, one charge of breaking and entering a building and one
charge of indecent assault.
[2] The first three charges related to events which occurred on 19 July
2002 at a residential property at 2 Nelson Terrace,
Timaru. The fourth and
fifth charges related to events at the same address on 6 December
2002.
[3] The appellant was sentenced on 23 December 2004 to
ten years imprisonment with a minimum period of imprisonment
of five
years.
[4] The appellant appeals against both conviction and sentence. The Crown opposes the appeal in its entirety.
[5] The appellant seeks an extension of time for bringing his appeal,
which is not opposed by the Crown. Adequate explanation
for the late filing was
provided and leave to appeal out of time is granted.
Grounds of Appeal
[6] The grounds of appeal are set out in a memorandum of amended
grounds of appeal dated 2 August 2005. They are:
Appeal Against Conviction
A miscarriage of justice has arisen as a consequence of:
a) Misdirections by trial judge including in particular in relation to
–
ii) criticism of trial counsel;
iii) the law of consent;
iv) the issue of the complainant’s motive to lie;
v) the proper use and relevant of recent complaint evidence; and vi) failure to give an inferences direction.
b) Cross-examination by prosecutor –
i) introducing evidence of prior consistent statement;
iii) making submissions/giving opinion in cross-examination.
c) Conduct of trial counsel –
ii) failure to bring s 23A Evidence Act 1908 application; and
d) The failure of the trial judge to appropriately deal with risk of
jury experimentation with condoms.
e) The trial judge’s decision to remand the appellant in custody
at a critical stage of his evidence.
Appeal Against Sentence
a) The sentence of ten years imprisonment was manifestly excessive;
and
b) The judge was wrong to make an order pursuant to s 86
of the Sentencing Act 2002 that the appellant serve a
minimum non-parole period
of five years imprisonment.
Background
[7] Both the complainant and the appellant gave evidence at trial and
both were extensively cross-examined. It is implicit
in the jury’s
verdicts of guilty on all five counts in the indictment, that they accepted
the complainant’s evidence
on the crucial facts and rejected the
appellant’s evidence. However, there was good deal of commonality in the
two versions
as to certain of the events that took place.
[8] In 2002 the appellant travelled to Timaru from time to time on business. He would stay at a motel at the northern end of the central city area of Timaru. On such
a visit on 18 July 2002 he visited a hotel and became exceedingly drunk. On
his way back to the motel he strayed off the route and
ended up in a nearby
residential street. In a bedroom at that address, which was in the nature of a
sleepout, he had sexual intercourse
with the complainant. Evidence as to the
events leading up to the acts of sexual intercourse, varied
considerably.
[9] The complainant T, said she was asleep in her bed in the sleepout
which was described as a small room sufficient only to
house a double bed. Her
son of 2 years was asleep with her. She awoke to find a man at the door of the
room. He left, but returned
immediately thereafter and he made it clear that he
intended to have sexual relations with her. She pleaded with the man, who was
the appellant, not to do so, and told him that she was pregnant, which was not
so. She said the appellant made comments to the effect
that if she did not
fight or resist, the sexual intercourse would not hurt and she would not be
harmed. Details of the sexual intercourse
that then followed were not
significantly in dispute. We shall return to them.
[10] According to the appellant, he was leaning up against the fence
outside the complainant’s residence at 2 Nelson Street
feeling distinctly
unwell. He heard the noise of a flushing toilet and then saw a young woman
close by. She inquired about his
health, a glass of water was discussed and in
effect she invited the appellant into the property to obtain a glass of water.
The
appellant said that while entering the building he stumbled against a step
and fell against the complainant, who of course was a
total stranger to him.
According to the appellant, she responded to that event by stating that if
sexual intercourse was to occur
she would like him to use a
condom.
[11] T agreed that when she realised that sexual intercourse was inevitable and that she was not going to be able to dissuade the appellant, she did ask him to use a condom. She said that she was acutely conscious of the threat he posed not only to herself but to her small son who was by her side, and she reasoned that since sexual intercourse seemed inevitable she should do what she could to ensure that it was over and done with as quickly, quietly and painlessly as possible.
[12] The first attempt to put on a condom was unsuccessful. T put the
second condom on the appellant’s penis to ensure that
it was properly on.
She also used a lubricant, she said to avoid injury to herself and to ease the
whole process. She described
sexual intercourse taking place with the
appellant behind her and said that it appeared at one stage that he was
attempting anal
intercourse. (That aspect he denied.) Because it appeared to
the complainant that the appellant was having difficulty in reaching
a climax
and she wished to conclude the whole business as soon as possible, she suggested
that intercourse should be in the more
traditional position with her lying on
her back. She also said that she scratched the appellant’s thigh to
encourage him to
achieve a climax. That occurred and he ejaculated into her
vagina.
[13] It was also common ground that following the completion of
intercourse it became apparent that the condom had broken, but
at that point the
evidence of the two participants again diverged widely.
[14] T said that she became extremely distressed because of the risk of
either pregnancy or infection as a result of the broken
condom. She left the
room with her son and went to a nearby toilet. The appellant said that the
complainant became angry and left
the bedroom for the toilet on her own, leaving
her son in the bedroom with him. He said that he then took the child through to
T
in the toilet, after which he left the property. It was common ground that he
left the property while she was in the toilet.
[15] After the appellant left the property T went upstairs to where her
father and stepmother lived. She made an immediate complaint
of rape to them
and the police were called. She described to her father how her underpants had
been ripped during the incident in
the bedroom. She said they were ripped when
the appellant grabbed hold of them and pulled them in order to get access to her
genitals
prior to the first act of intercourse.
[16] The complainant was taken to a doctor, Dr Bourke, who examined her. She found tenderness in the genital area consistent with blunt force penetration, although
she could not exclude the possibility of that occurring as a result of
consensual sexual activity.
[17] Despite the usual forensic examination and police inquiries
following the events in the early morning of 19 July 2002, the
perpetrator of
the claimed rape could not be located.
[18] Almost six months later, in December 2002, the appellant
was again in Timaru on a business trip. He had apparently
visited Timaru on
business on several occasions in the intervening period, but on the evening of 5
December 2002 he again consumed
alcohol and he returned to the address of 2
Nelson Street. He said his purpose in so returning was to apologise to the
woman for
what had happened on the previous occasion, in particular that he had
left the property while she was in the toilet following the
discovery of the
broken condom.
[19] T’s version of the events on 5-6 December 2002 again was
significantly at variance with that of the appellant. She
said she was in her
bed in her bedroom, which at this time was at the opposite end of the house, she
having moved there for security
reasons following the events in July 2002.
She awoke to find a man on top of her, whom she immediately recognised as the
man who
had raped her on 19 July. She said he attempted to loosen or undo his
trousers and she feared that what had happened in July was
about to happen
again. She said she spoke with the man and for whatever reason, was able to
dissuade him from having sexual intercourse
with her.
[20] The appellant denied entering T’s bedroom at all on the second
occasion. His evidence was that he went back to the
house to apologise but went
no further than the sunroom where he had a conversation with the complainant
having been able to attract
her attention by knocking on her bedroom window.
Although the appellant said he did not enter the bedroom at all, his fingerprint
was found on the door leading to the hall from the sunroom.
[21] Following the December incident, T again made an immediate complaint, this time initially to her brother, and the police were again called. Police inquiries
after that incident were again fruitless. The only forensic evidence
available was the fingerprint, at that stage unidentified, on
the door from the
sunroom into the hall.
[22] On 21 February 2004 T was living in Dunedin, where the appellant
also lived. On that evening she was attending the Hoyts
Cinema complex in the
Octagon to buy tickets to a film. She saw the man who had come into her house
on 19 July and 6 December 2002.
She was extremely distressed but was persuaded
by the friend she was with, to follow the man. The police were contacted and
came
to Hoyts complex. The appellant was approached and told that the police
wished to speak to him in relation to an incident involving
a woman in Timaru
several years previously. The appellant, who was with his wife, denied any
knowledge of such an incident. However,
he was subsequently interviewed by the
police on 1 March 2004 when he made a lengthy statement, in which he
maintained
that the sexual intercourse with the woman in Timaru on 19 July
2002 was totally consensual and that he did not enter her bedroom
on the night
of 5-6 December 2002.
Appeal against Conviction
[23] We have concluded that on two of the grounds for the
appeal against conviction the appeal must be allowed and
a retrial ordered. We
shall first consider those two grounds of appeal, and will give brief
observations only on the remaining grounds
of appeal.
Consent
[24] In directing the jury as to the essential elements of the two charges of rape, the trial judge referred to the preliminary memorandum he issued to the jury at the commencement of the trial and to the three elements of the charge of rape summarised in that document. He noted in respect of the first element, deliberate penetration of the complainant’s genitalia by the accused’s penis, that both acts of sexual intercourse were admitted and that the issue therefore need not concern the jury further.
[25] He then turned to the second element of the offence of
rape which he described at [168] of the summing up as:
... the crucial element which requires your consideration in the factual
circumstances of this trial.
[169] That element is the lack of consent by the complainant to the act in
question. It focuses on the complainant’s state
of mind at the time of
the act.
[26] The Judge noted that the Crown’s case was that T did not
consent to either act of intercourse and that conversely the
defence asserted
that both acts were fully consensual and were in fact initiated not by the
appellant but by T. He directed the
jury that if they accepted T’s
evidence about the circumstances of the two acts of intercourse in her bedroom
on 19 July 2002,
the Crown would have proved the element of lack of consent.
Conversely, if the jury accepted the appellant’s evidence that
the two
acts of intercourse were totally consensual, or if they were not satisfied with
the credibility of T’s evidence regarding
those offences, the Crown would
not have proved the crucial element that the acts of intercourse occurred
without the consent of
the complainant.
[27] The judge then turned to what he described as the third element and
said, at
[185]:
If you are sure that [T] did not consent to the two acts of intercourse with
Mr Adams in her bedroom on 19 July 2002, you must then
consider the third
element, which is the absence of a reasonably-based belief in
consent.
[28] He continued:
[186] However, although in strict terms you must consider that element
separately, because it is an element which must be proved
by the Crown, in this
case it is not alleged by the defence that Mr Adams could have
mistakenly believed that [T] was
consenting to sexual intercourse, in
circumstances where in fact she was not consenting at all.
[187] In other words, it is not a scenario where it is alleged that there
were mixed messages. The scenario from the defence viewpoint
is that the two
acts of intercourse were totally consensual, while from the Crown’s
perspective the contention is that the
two acts of intercourse were not
consensual.
[188] However, in respect of the third element the Crown case is that, if the incident in the bedroom occurred as [T] said it did, Mr Adams could not
have believed that she was consenting, or that, if he did, there was no
reasonable basis for such belief.
[189] That is because, as with the consent issue, the crucial questions
which you must determine relate to how the incident began.
[190] Did [T] come out while Mr Adams was leaning on the fence outside
2 Nelson Terrace and effectively both invite him inside and invite him to have sexual intercourse, or did she wake up to find Mr Adams in her
bedroom? If it was the latter, the sexual intercourse was non-consensual,
and Mr Adams knew that it was, which means that it was rape. Conversely, if
it was the former, or if it could have been
the former, the sexual
intercourse was consensual and was not rape.
[29] The judge returned to identification of the crucial issues when
discussing matters of an evidential nature. At para [212]
he said:
... the crucial issues relating to the events of 19 July relate not to how
the two acts of intercourse proceeded, as one might say,
in the bedroom, but to
the preceding events i.e. the circumstances in which Mr Adams came to be inside
the house and inside [T’s]
bedroom that morning.
[213] The fact that in many respects there is agreement, or at the very
least not great divergence, between [T’s] account
of how the acts of
intercourse in fact occurred and Mr Adams’ account of that part of the
incident is therefore not of crucial
significance.
[30] It was first submitted for the appellant in relation to the
Judge’s directions on consent, that he failed to give a
standard direction
to the effect that a consent given reluctantly, or a consent given but later
regretted, is still consent as a
matter of law. Counsel described this as a
“quite standard direction almost invariably included with a consent
direction”.
Counsel cited R v Herbert CA 81/98 12 August 1998, at
3, where the Court of Appeal stated that the trial Judge correctly directed that
the consent meant a true
consent, that a true consent may be given reluctantly
or hesitantly and might be regretted afterwards, but if consent is given even
in
such a manner, provided it is without fear of the application of force or the
result of actual or threatened force, then the act
of sexual connection would
not be rape.
[31] It was submitted that in this case the possibility that the complainant consented reluctantly (perhaps because her child was present), or later regretted having consented (perhaps because of the condom breaking giving rise to consequential risks), were real possibilities and the failure to fully and properly direct on this aspect of consent, was significant.
[32] Counsel secondly submitted that the direction in relation to the
second limb of consent was seriously flawed. The Crown
had to prove in relation
to the appellant that the sexual connection with T was “without believing
on reasonable grounds that
[T] consents to the connection”. While the
Judge referred at paragraph [185] to the third element being “the absence
of the reasonably-based belief in consent”, in the next paragraph he
referred to the appellant having “mistakenly believed” she
was consenting.
[33] Then the Judge directed the jury that “... as with the consent
issue, the crucial questions which you must determine
relate to how the incident
began”. The Judge at paragraph [190] then specifically directed the
jury that if they
accepted the appellant’s version that he was
leaning on the fence outside 2 Nelson Terrace and T effectively invited him
inside and invited him to have sexual intercourse, then the intercourse was
consensual. On the other hand, if T’s
version of events was
accepted, that she woke up to find the appellant in her bedroom, then the sexual
intercourse was non-consensual,
“... and Mr Adams knew that it
was”.
[34] It was submitted that the critical time to assess the issue of
consent is at the time the act of penetration occurs and that
the direction
given flies in the face of that critical proposition.
[35] On the facts of this case, it was submitted, it was open to the jury
to reject the appellant’s evidence as to how
he met T, and yet
to accept that either the complainant might have consented or that the
appellant might have reasonably
believed she consented to the acts of sexual
intercourse.
[36] Relevant factors in determining that issue, which were not in dispute, included aspects of the complainant’s conduct in relation to the acts of sexual intercourse, for example that she asked the appellant to wear a condom, she assisted him to put it on when he was having difficulty, she obtained lubricant from beside her bed and applied it to the appellant’s penis, she touched him on the thigh during intercourse to help him achieve orgasm, she suggested the change of position to facilitate climax and ejaculation. It was submitted that, putting aside the evidence as to how the incident began, it was open to the jury to find that the appellant might
have believed on reasonable grounds that the complainant was consenting,
given the above and other factors surrounding the acts of
sexual
intercourse.
[37] It was therefore quite wrong, Mr Eaton submitted, for the Judge to
direct the jury to focus solely on the circumstances in
which the complainant
and the appellant met and to state that the crucial issues for the jury did not
include how the two acts of
intercourse proceeded in the bedroom (para [212]),
and that these facts were “not of crucial significance” (para
[213]).
[38] He further submitted that it will be extremely rare where the
defence is consent, that it is appropriate for a Judge to direct
the jury to
disregard the second limb of consent under s 128(2)(b). Where the defence is
consent, this is an element which it is
essential for the Crown to prove, and
the jury should have been directed clearly on that aspect.
[39] In relation to the first submission for the appellant, the Crown
submitted that a consent direction does not need to
include the
“archaic and largely mythical proposition” that a consent
tearfully given or subsequently regretted
is still consent (R v C
CA446/98 13 September 1999).
[40] It was secondly submitted for the Crown that the Judge directed
on the meaning of consent in a purely orthodox way,
tailoring his summing up to
the facts of the case. The case was one of positive and asserted consent and
there was no reliance
by the defence on the proposition that there was
reasonable belief in consent, which was inconsistent with the
appellant’s
assertions as to the reasons that T accused him of rape
(perhaps the dislodged condom, or perhaps because she had agreed to have
sex
with him as an act of prostitution and had not been paid). Therefore it
was appropriate for the Judge to note that the
defence did not rely on the
second limb of consent, and he directed the jury of the need to consider this
element separately because
it was an element that must be proved by the
Crown.
[41] It was further submitted for the Crown that the emphasis the Judge placed on how the appellant came to be in the house, in relation to the defence of consent, was not misplaced when assessed in the context of the trial. This area of evidence was
the critical difference between the Crown and defence cases, and could not be
put to one side in considering absence of consent or
reasonable belief in the
absence of consent.
Discussion
[42] As to the appellant’s first submission, we note that the Judge
directed the jury that consent means “a true,
informed and voluntary
decision which is given by a person who is in a position to make a rational
decision about the sexual act
in question”. He drew the distinction
between consent which is freely and voluntarily given and submission or
acquiescence
to what is unwanted but appears to be unavoidable, for example
submission through fear or a sense of powerlessness or entrapment.
The
complainant’s evidence was that she submitted to the sexual intercourse
because of fear for the safety of herself and
her young son. The appellant
asserted that the sexual intercourse was consensual and indeed that the
complainant was the dominant
party in all that occurred. The summing
up appropriately addressed the issue of consent to reflect the conflicting
perspectives
of the parties.
[43] However, given the evidence of the broken condom and the upset
and/or anger of the complainant which followed its
discovery, it would
have been preferable that the Judge included a direction along the lines of
that given in R v Herbert. But the issue here, as in all cases where
consent is in issue, was the state of mind at the time of penetration, of the
complainant
under s 128(2)(a) and of the appellant under s 128(2)(b). The
events that followed intercourse were not necessarily irrelevant
to the issue,
but they could not bear directly on the crucial issue of consent and belief in
consent at the time the acts of sexual
intercourse actually took
place.
[44] As to the appellant’s second submission, the Judge’s direction to the jury on the second limb of s 128(2) was simply wrong. The Crown carried the burden of proving, as an essential element of the two charges of rape against the appellant, that the sexual intercourse was without his believing on reasonable grounds that T consented. That reasonable belief in consent was not part of the defence case, did not relieve the Judge of the necessity to properly direct the jury as to all the essential
elements of the charge which must be proved, and to identify for the guidance
of the jury matters of evidence which may be relevant.
The Judge failed to do
this. While he referred briefly in paragraph [188] of the summing up to the
Crown’s position in relation
to reasonable basis for belief, he
subsequently confused and misstated the situation by stating at paragraph
[213] that how
the acts of intercourse in fact occurred were “not
of crucial significance”. On the basis of the essentially
undisputed
evidence as to how the two acts of sexual intercourse proceeded, there was a
sufficient evidential basis to raise a reasonable
doubt in the minds of the jury
that the appellant did not believe on reasonable grounds that T consented to the
acts of sexual intercourse.
The relevant evidence included the factors listed
in paragraph [36] above, which had to be considered by the jury in the context
of all the evidence in order to determine whether the Crown had proved absence
by the appellant of reasonable belief in consent in
terms of s
128(2)(b).
[45] The issue of consent was at the nub of this case, and had to be
determined in terms of both limbs of s 128(2). By directing
the jury that
relevant evidence was “not of crucial significance” the Judge took
from, or at least deflected the jury
from, consideration of matters of fact
which were properly for them to determine in relation to the issue of
consent.
[46] Further, the Judge was wrong in the directions he gave as to the
time at which issues of consent must be determined.
[47] While in introducing the issue of consent at [169] the Judge correctly stated that the element of lack of consent by the complainant “focuses on the complainant’s state of mind at the time of the act”, when addressing the issue of timing in relation to the second limb of s 128(2) he misdirected the jury. He said that “... as with the consent issue the crucial questions which you must determine relate to how the incident began”. And at [212] he reiterated that the crucial issues relating to the events of 19 July related “... not to the two acts of intercourse but to the preceding events, i.e. the circumstances in which Mr Adams came to be inside the house and inside [T’s] bedroom that morning”.
[48] The Judge would have done well to remind himself by reference
to the
Criminal Jury Trials Benchbook of the standard directions that there
appear:
The material time when consent, and belief in consent, is to be considered is
at the time the act actually took place. The complainant’s
behaviour and
attitude before or after the act itself may be relevant to that issue, but it is
not decisive. The real point is whether
there was true consent, or a reasonably
based belief in consent, at the time the act took place.
[49] In summing up a Judge should look to tailor directions to the jury
to the facts of the case. But the directions must be
strictly in accordance
with the law and relevant legal principles. Although evidence of events before
and after the act or acts
of sexual intercourse may be relevant in determining
the issue of consent, they are not decisive. The Judge was wrong to direct
the
jury that how the incident began was the crucial question. It was open to the
jury to reject the appellant’s account of
how the parties met, and yet
entertain a reasonable doubt that the complainant consented to the acts of
intercourse or
that the appellant might reasonably have believed she did
consent. The analysis the Judge presented to the jury excluded such a
possibility.
[50] Consent was the central issue in this case. The clear misdirections
by the trial Judge on the issue of consent raise a real
risk of an unsafe
verdict and thus led to a miscarriage of justice.
Onus and Standard of Proof
[51] Although not specified as a separate ground of appeal in the
appellant’s amended grounds of appeal dated 2 August
2005, this issue was
addressed by both parties in their written and oral submissions.
[52] In his summing up, the Judge reminded the jury of the fundamental
principle that the burden of proof in a criminal trial
rests on the Crown from
beginning to end; that conversely, an accused person is under no obligation to
prove anything, let alone
his or her innocence.
[53] In explaining “beyond reasonable doubt” he stated at [117]
... it means proof beyond the doubt which you, as the jury, as the judges of
fact regard as reasonable in the factual circumstances
of this case.
[54] He continued at [118] that proof beyond reasonable doubt
... involves being sure of guilt.
[55] However, the Judge then sought to further explain the meaning of the
word “reasonable”. He said it was a high
standard, rightly so, but
did not require the Crown to prove the charge to absolutely scientific or
mathematical certainty. He
stated at [124]:
You must therefore be sure of guilt, but not necessarily absolutely certain
of it, before you can find Mr Adams guilty ... To find
the person guilty you
would want to be as sure of that conclusion as you would want to be when making
an important decision in your
own life.
[56] This direction repeated a statement in the written preliminary
memorandum provided to the jury by the Judge which stated:
To return a guilty verdict you must therefore be sure, but not necessarily
absolutely certain, of guilt.
[57] It was submitted for the appellant that the direction by the Judge
which equated proof beyond reasonable doubt with the level
of certainty required
when making an important decision in your own life, was unhelpful and could only
have the effect of diluting
or diminishing the standard of proof. It was
submitted that many important decisions made in life are made on the balance of
probabilities
and with a degree of speculation; thus the analogy was quite
unclear and inappropriate.
[58] The Crown acknowledged that there are well-known risks in elaborating on the meaning of reasonable doubt, but submitted that the predominant message in the Judge’s summing up was that the jury must be sure of guilt and that in the context of the direction overall, reference to “an important decision in your own life” could not be seen to invite a standard based on the mere preponderance of factors in choosing between two possibilities.
Discussion
[59] The Judge’s elaboration as to the meaning of “beyond
reasonable doubt”, beyond the straightforward direction
to the jury that
they must be sure of guilt, was in our view not only unhelpful, but
wrong.
[60] The qualification in both the preliminary memorandum and the summing
up “but not necessarily absolutely certain of
it” carried a real
risk of diluting and diminishing the clear direction that the jury must be
sure. At best there was
a risk that the jury would be confused as to the
standard of proof required.
[61] The Judge went on to further qualify the straightforward direction
that the jury must be sure of guilt, by stating that they
would want to be as
sure as “... when making an important decision in your own
life”.
[62] Many factors are brought to bear when people make important
decisions in their own lives. Such decisions may be influenced
by elements of
speculation, hope, prejudice, emotion. These factors frequently, and often
quite appropriately, impact when people
take important decisions in their own
life. It is also likely, if not inevitable, that in taking such decisions the
decision maker
cannot be sure beyond reasonable doubt, but will decide on the
balance of probabilities.
[63] The introduction by the trial Judge of additions and elaborations as
to the meaning of “beyond reasonable doubt”,
carried a real risk
that the jury would at least be confused and quite likely would misunderstand
their obligation to be sure of
guilt beyond reasonable doubt.
[64] In this respect the Judge’s summing up was clearly wrong. The
deficiencies in the direction as to the onus and standard
of proof carried a
real risk of an unsafe verdict and so led to a miscarriage of
justice.
Motive to lie
[65] The thrust of the appellant’s argument under this heading was that because of the emphasis on the complainant’s motive to lie in the prosecution’s cross-
examination of the appellant, it was incumbent upon trial Judge to give a
specific direction reminding the jury of the onus and standard
of proof. In
particular, the Judge should have reminded the jury that it was not for the
appellant to establish that the complainant
had a motive to lie and that the
onus of proof remains on the Crown throughout.
[66] Counsel submitted that the situation was exacerbated by the Crown in
closing referring to the appellant’s responses
to the cross-examination
regarding the complainant’s motive to lie, as amounting to the
“fundamental flaw” and
the “fundamental problem” with
the defence case.
[67] It was submitted that these factors combined to create a real risk
of the jury being diverted from focussing on proof of
the charge into a concern
regarding the “flaw” or “problem” with the
appellant’s explanations
as to the complainant’s motive to
lie.
[68] The Crown submitted that there was no need for the Judge
specifically to direct that the appellant did not need to prove
his assertions
of a motive for the complainant to lie. The Judge had given a clear direction
at [111] regarding the position when
an accused gives evidence:
... an accused is under no obligation to prove anything, let alone his or her
innocence.
[69] The Crown submitted that the jury were properly directed about the burden and standard of proof and the effect of the accused giving evidence. Counsel accepted that the questions put to the appellant in cross-examination regarding the motive of the complainant to lie were repetitive and that the cross-examination on this aspect should have been curtailed. Nevertheless, counsel submitted, the appellant was not manipulated or deflected by the manner of cross-examination from adequately responding to the questions, and ultimately in response to questioning from the prosecutor, stated his theory that because the condom had broken, and there was the possibility of sexual transmitted disease or pregnancy, the complainant became upset; further that she was expecting payment, which she did not receive.
These factors, according to the appellant, led the complainant falsely to
accuse the appellant of rape.
[70] In the somewhat unusual circumstances of this case, submitted the
Crown, it was appropriate for the prosecutor to pursue
this aspect with the
appellant, particularly as the appellant accused not only the complainant but
other prosecution witnesses, Detectives
Glover and Leishman, of giving evidence
which was not truthful.
[71] We consider it would have been preferable that when directing the
jury that in assessing credibility one of the factors they
were entitled to take
into account was the motive of a witness to lie or make a false allegation, the
Judge also reminded the jury
in clear terms that it was not for the appellant to
establish that the complainant had a motive to lie, and that the onus of proof
of the essential elements of the charges remains on the Crown
throughout.
[72] In R v T [1998] 2 NZLR 257, 265 this Court said:
We accept that the proposition “Why would the complainant lie?”
should not be presented in a way which would deflect or
distract the jury from
the central issue, whether the Crown had proved the charge and each element of
the charge beyond reasonable
doubt. Nor should any suggestion be allowed that
there was an onus on the accused to advance a credible answer. Generally, the
trial
Judge would be required to intervene firmly if these principles were
infringed. And without wishing to burden Judges with yet another
topic which
must be covered in summing up, in any case where the prosecution had sought to
bolster the complainant’s credibility
by reference to the absence of a
motive to lie, the charge to the jury needs to be clear that regardless of the
absence of evidence
of motive, the onus of proof remains on the Crown
throughout.
[73] In R v Prattley CA 42/04, 3 August 2004, this Court declined to accept that R v T required the trial Judge to direct the jury that if they rejected the defence contention that the complainant had a motive to lie, such rejection did not affect the onus of proof, which remained on the Crown throughout the trial. In that case the Judge had instructed the jury that there was no obligation on the defence to establish its contention of a motive to lie, and the Court considered that that direction, coupled with the standard directions concerning onus of proof, was as much as was required.
[74] Here, the trial Judge directed that the accused was under no
obligation to prove anything and properly directed on the effect
of the accused
giving evidence. Given the persistent and detailed cross-examination of the
appellant on the complainant’s motive
to lie, and the manner in which this
was referred to in the closing address of the Crown, it would have been
preferable for the Judge
to have given the jury a specific direction in relation
to motive to lie and onus of proof. However, we do not consider his failure
to
do so, gave rise to a real risk of a wrong verdict.
Recent complaint
[75] The trial Judge’s directions as to the recent complaint
evidence, which was given in this case by the father of the
complainant as to
events on 19 July, and as to her brother in relation to the events of 6
December, was convoluted and unclear. While
the Judge stated, both in
his summing up and in the preliminary memorandum, that the recent
complaint evidence
was relevant to the jury’s assessment of the
complainant’s credibility, his directions then referred
to
consistency of the matters described in the complaint with the evidence that the
complainant gave, rather than focussing on
the fact of the complaint having been
made. The consistency which is of relevance for the jury in recent
complaint evidence,
is of the complainant’s conduct at or near the time of
the alleged event, and her subsequent evidence. The fact that the complaint
was
made will be evidence relevant to assessing the credibility of the complainant
even if she gives no particular details or description
or what was alleged to
occur.
[76] The basis of recent complaint evidence was usefully summarised in the
judgment of this Court in R v T delivered by Eichelbaum CJ at
270:
It is trite law that evidence of recent complaint is not evidence of its
truth or of any other fact than that it was made. In particular
... it is not
evidence of absence of consent. Recent complaints are admitted only as showing
consistency between the complainant’s
conduct at the time and his or her
evidence at the trial thereby supporting the credibility of the witness’s
testimony (see
R v Nazif [1987] 2 NZLR 122 at p 125).
[77] The Judge’s summing up in focussing on “consistency of account” was misleading and wrong. He did not direct the jury that the evidence of recent
complaint was not evidence of absence of consent, which in this case where
consent was the central issue, should have been the subject
of a
direction.
[78] The Judge further distorted the clear message which needed to reach
the jury by stating at [265]:
One of the reasons why evidence of the complaint may be relevant in assessing
the complainant’s credibility in a case of this
nature is that, as a
matter of common sense, it may be unlikely that a person would disclose to
another person the occurrence of
a totally consensual sexual act.
[79] As counsel for the appellant submitted, this was a novel direction.
It suggests an inference available to the jury that
the sexual intercourse in
this case was non- consensual because as “a matter of common sense”
people do not talk to others
about consensual sexual activity. Such a
suggestion had no place in a direction on recent complaint evidence where the
focus must
be that the evidence of recent complaint is not evidence of its truth
and is not evidence of absence of consent. The proposition
suggested by the
District Court Judge is in any event of doubtful validity, was unsupported by
evidence, and should not have been
raised for the jury’s consideration.
This contributed to the unfairness of the trial.
Inferences direction
[80] It was submitted for the appellant that despite the
extremely detailed summing up, the Judge failed to give the
jury the standard
inferences direction (R v O’Connor CA 475/04 7 March 2005).
The Crown submitted that while an inferences direction is common, and
indeed almost invariable,
whether and to what extent such a direction is
required must be considered in the context of the particular trial, and in this
case
the jury’s determination would depend on their assessment of
credibility, rather than on inferences.
[81] We essentially agree with the Crown’s submission. However, because as we have stated above, the Judge was obliged to direct the jury as to the defence of honest belief in consent, although it was not a defence pursued by the appellant at trial, there were inferences available that were relevant to that issue and which warranted the usual inferences direction.
[82] In the overall context of the case however, we do not consider
that the absence of such a direction would have resulted
in an unsafe
verdict.
Complainant’s distress
[83] It was submitted for the appellant that both the interventions of
the Judge when the complainant became distressed while
giving evidence, and his
directions in relation to his interventions, were inappropriate. It was
submitted that the nature of the
Judge’s interventions exceeded his role
and that in referring to the matter in summing up over a week after the
complainant’s
evidence had been given, the jury could only have been
reinforced in the impression that the Judge believed the complainant was a
credible witness.
[84] In summing up the Judge said to the jury at [20]:
... I must make it clear that my interventions when the complainant, T,
became upset while giving evidence, when on occasions I encouraged
her to take
deep breaths, to pause or to have a drink, must not be taken as
indicating any view about her credibility.
[21] ... you must not be dissuaded from reaching an adverse conclusion
regarding her credibility simply because I appeared to
encourage her through the
experience of giving evidence.
[85] We do not consider there is any merit in this ground of appeal. The
Judge’s remarks in his summing up were directed
at addressing any
imbalance unfavourable to the appellant that may have arisen from the
Judge’s intervention to assist a witness
who clearly found the experience
of giving evidence highly distressing.
Criticism of trial counsel
[86] In his summing up, the trial Judge explained to the jury that whereas defence counsel has the opportunity during his closing address to comment on any misstatement about the evidence made by Crown counsel in closing, that opportunity is not available to the Crown so that any errors by defence counsel in closing can only be corrected by the Judge. In the following 36 paragraphs, the Judge developed and commented upon misstatements he said were made by defence counsel in closing. He prefaced his remarks by stating that he commented “solely as a matter of
fairness, to ensure that the evidence has been correctly and accurately put
before you by both parties ...”, and “...
I do not mention these
issues to bolster the Crown case, or for any other purpose”.
[87] We do not propose to analyse the various matters of misstatement
which the Judge took it upon himself to draw to the attention
of the jury. We
simply observe that the detail and manner in which the Judge addressed these
issues led overall to a risk of unfairness
for the accused. It is inevitable
that a jury will place significance on criticisms by the trial Judge of the
conduct of counsel,
greater than any criticism one counsel may direct to
another. It was unnecessary for the trial Judge to become involved in the
extent
and level of criticism of defence counsel which he did in his summing up.
His introductory comments to the jury, which were no doubt
intended to balance
the situation, were unlikely to have been effective to do so given the extent of
his critical remarks that followed.
This is an aspect that contributes to the
unfairness of the trial.
[88] We note, however, that it was appropriate, indeed necessary, that the Judge drew to the jury’s attention that the explanation given by the appellant in evidence as to how the complainant’s underwear came to be ripped was not put to the complainant in cross-examination. The appellant’s evidence was that he believed the complainant had deliberately ripped the underpants after sexual intercourse and before the police arrived. She said that her underwear was ripped by the appellant prior to the first act of sexual intercourse when he was grabbing at her trying to get access to her genital area. Defence counsel referred to the ripped underpants in his closing, suggesting that T may have ripped the underwear and put on other clothing before she went upstairs. The assertion by the appellant that the complainant had manufactured evidence was a serious one which had to be put to the complainant in cross-examination by defence counsel before it could found the basis of any submission by him. It was necessary therefore, that the Judge should direct the jury about the status of this evidence. However, in dealing with this evidence the Judge once again went too far and gave inappropriate directions to the jury. He referred to the evidence of T’s father as to what T said to him about the ripped underwear when she went upstairs and spoke to him following the sexual activity. In doing so he
elevated the status of the evidence of T’s father, which was hearsay
and admissible only in the limited context of recent complaint
evidence.
Cross-examination by prosecutor
[89] It was submitted for the appellant that the
cross-examination by Crown counsel of the appellant was inappropriate,
unfair,
or impermissible to the extent that the trial Judge should have intervened to
stop it. It sought speculation or opinion
on the complainant’s motive to
lie and also on the credibility of other witnesses whom the appellant said was
lying. It was
said that the cross-examination went on for nearly five hours,
unabated at all by the trial Judge, and enhanced the risk that the
trial process
was unfair to the appellant.
[90] Counsel for the Crown accepted that on the issue of the
complainant’s motive to lie the cross-examination should
have been
closed off sooner than it was. However, the appellant elected to give
evidence. His case was that the complainant
was lying and he alleged that she
had manufactured some physical evidence (the ripped underwear). He suggested
motives for her lying;
that she was angry about the ripped condom and her being
exposed to the risk of sexually transmitted diseases and pregnancy, and
that she
expected to be paid for her services and was not.
[91] The Crown pointed out that there were also fundamental differences
between the evidence of the appellant and two police officers,
Detectives
Leishman and Glover, regarding the initial explanation given by the appellant
to those officers. Their evidence was
that the appellant claimed to them
that he had met the complainant at an hotel and from there they had gone
back to her
place.
[92] In a case where the credibility of the complainant on the one hand, and the appellant on the other, was crucial, it has to be expected that the appellant, having elected to give evidence, would be subjected to detailed and persistent questioning in cross-examination. We are not persuaded that the manner and the extent of the cross-examination resulted in an unfair trial for the appellant, although there is room for criticism, as was accepted by the Crown.
Conduct of trial counsel
[93] It was submitted for the appellant that the conduct of the defence
resulted in a miscarriage of justice because of serious
errors made by trial
counsel; that in this case, there was “radical mistake or blunder”
that meets the threshold test
in R v Pointon [1985] 1 NZLR
109.
[94] In R v Sungsuwan [2005] NZSC 57, a decision released a few
days after the hearing of this appeal, the Supreme Court said that it was
incorrect to characterise the
Pointon test as “radical mistake or
blunder”, because that focuses on the gravity of the mistake, rather than
its impact on the
outcome of the trial. The test to be applied was summarised
in the judgment of Gault, Keith and Blanchard JJ at [70] as follows:
In summary, while the ultimate question is whether justice has miscarried,
consideration of whether there was in fact an error or
irregularity on the part
of counsel, and whether there is a real risk it affected the outcome, generally
will be an appropriate approach.
If the matter could not have affected the
outcome any further scrutiny of counsel’s conduct will be unnecessary.
But whatever
approach is taken, it must remain open for an appellate court to
ensure justice where there is real concern for the safety of a verdict
as a
result of the conduct of counsel even though, in the circumstances at the time,
that conduct may have met the objectively
reasonable standard of
competence.
[95] That is the test we will apply in this case.
[96] The appellant’s submission was developed under three main headings. (a) Failure to cross-examine complainant in relation to ripped underwear
[97] It was submitted that the evidence of the ripped underwear was crucial. It was referred to by the Judge in his summing up as crucial corroborative evidence of T’s account of the evidence on 19 July. It was the subject of three questions asked by the jury following the closing addresses, but before the summing up, and seven hours after deliberations began the jury asked to see the underwear again. It was described by Crown counsel in his closing address as “... very very important evidence”.
[98] Yet, it was claimed, the appellant was not briefed to give evidence
of an explanation for the ripped underwear and his only
explanation came out
when he was cross-examined on the issue. Defence counsel did not put the
matter of the ripped underwear to
the complainant nor to any other witness.
Having not put the issue to the complainant in cross-examination, defence
counsel, without
a proper evidential foundation, dealt with it in his closing
address thereby attracting criticism from the Judge and a direction
that the
jury should disregard the defence submission in relation to the ripped
underwear. Accordingly, there was no explanation
offered by the defence in
relation to critical corroborative evidence relied upon by the Crown.
That, submitted counsel,
was a radical blunder or mistake which has led to an
unfair trial and a miscarriage of justice.
[99] Applying the Sungsuwan test, we accept that there was an
error on the part of counsel, and that it is at least arguable that there is a
real risk it affected
the outcome of the trial. If counsel proposed to make
submissions about this matter in his closing address, he was obliged to
establish
an appropriate evidential foundation for those submissions, which he
failed to do. It was to be expected that this would attract
adverse comment
from the Judge.
(b) Section 23A Evidence Act 1908 application
[100] It was submitted for the appellant that trial counsel should have
brought an application under s 23A of the Evidence Act in
order that it could be
put to the complainant that the sexual intercourse with the appellant was an act
of prostitution.
[101] Counsel relied on a number of facts as providing an evidential foundation for the appellant’s assertion that this was an act of prostitution and suggesting that non- payment provided a motive on the complainant’s part to lie. These facts included that the complainant used the sleepout as a room to have sex with her boyfriend when he stayed over, there was a panic alarm near the bed, the sleepout was littered with condoms, used and unused, there was lubricant in the sleepout which the complainant used during the intercourse with the appellant, an unexplained sum of
$500 was found under the mattress in the sleepout, and the complainant took a number of steps to facilitate intercourse with the appellant.
[102] However, it was common ground that the semen in all the condoms found
in the sleepout was analysed by ESR which established
that the semen was
consistent with originating from the same person who had the same DNA profile as
the complainant’s then
boyfriend. The appellant engaged a private
investigator. He found no evidence to support the proposition that the
complainant
was a prostitute, and the police had no information that she was a
prostitute.
[103] The other facts referred to by the appellant do not support the
proposition. In those circumstances there was no evidential
foundation for the
proposition that the complainant was a prostitute to support a s 23A
application.
[104] Further, had such an application been brought and been successful, it
is likely that cross-examination of the complainant
on the topic could have
undermined the defence case. Many of the facts, e.g. the complainant’s
co-operation in the sexual
intercourse, were already before the jury, and she
had provided an explanation for her conduct. There is a real risk that putting
to the complainant the proposition that she was a prostitute without any
evidential foundation would have been detrimental to the
defence case, as trial
counsel states in his affidavit filed on appeal.
[105] It was also submitted that a s 23A application should have been
brought to permit cross-examination of the complainant about
an earlier incident
when she had alleged rape by another male with whom she had apparently
subsequently had a brief relationship;
that she was sexually aggressive
according to her boyfriend; and that following the incidents of sexual
intercourse with the appellant
she had wanted sex with her boyfriend a short
time after.
[106] These are all collateral issues and would have been unlikely to have
satisfied the high threshold in s 23A which requires
the evidence to be
“of such direct relevance to facts in issue in the proceedings that to
exclude it would be contrary to the
interests of justice”.
[107] Further, as trial counsel states in his affidavit filed on appeal, in the absence of evidence from the complainant’s boyfriend who was a reluctant witness with whom no contact had been able to be made by the defence, cross-examination on
these matters which relied on what he had said to the police, was likely to
have been
“fruitless” and ran the risk of diminishing the defence case in
the eyes of the jury.
[108] As to the prior rape allegation (which appears to have been an
account to family members, not a formal complaint to the police),
it could have
no probative value. It was not a false complaint which could be relevant to
credibility. Cross- examination on this
issue could only have led to
speculation by the jury.
(c) Character evidence
[109] Finally, it was submitted by the appellant that failure by trial
counsel to call character evidence from the appellant’s
wife and a Mr
Richard Shaw, amounted to radical blunder or mistake. The appellant asserted
that he was put in a position where
he accepted the advice of trial counsel not
to call these character witnesses, although they were available. Trial counsel
in his
affidavit states that he and the appellant agreed that Mr Shaw was not to
be called even before the trial started, and it was subsequently
agreed not to
call Mrs Adams because to do so would raise difficulties in relation to bail
over the weekend before she would
have given evidence.
[110] The decision not to call character evidence was simply a matter of
trial tactics. There is no suggestion that trial counsel
acted contrary to
instructions in making the decision not to call these witnesses. Further,
character evidence in such cases is
not necessarily of assistance to the
defence. The decision not to call the witnesses was taken for good reasons and
cannot constitute
error on the part of trial counsel, which carried a risk of
affecting the outcome of the trial.
[111] The matters under (b) and (c), whether considered individually or cumulatively, do not constitute radical error on the part of trial counsel such as gave rise to the risk of a wrong verdict.
Failure of trial Judge to appropriately deal with risk of jury
experimentation with condoms
[112] The Court crier found two unopened packets of condoms in the jury
room on
8 December 2004, before the Judge commenced his summing up. When the crier
returned to the jury room to take the jurors into Court,
there was no sign of
the two condom packets. He did not report the matter to the Judge until after
the trial when he mentioned it
in passing in a light-hearted way. He had not
thought the matter serious, otherwise he would have told the Judge
immediately.
[113] The presence of the condom packets in the jury room apparently came
to the attention of counsel who represented the appellant
at trial, following
the trial.
[114] Given that the Judge was not made aware of the presence of the two
condom packets until after the conclusion of the trial,
he was not in a position
to take any steps. Had he been aware of evidence that suggested experimentation
by the jury in relation
to a matter relevant to the trial, then he should have
investigated: R v Norton-Bennett [1990] NZLR 559. However, as a
threshold requirement there must be a suspicion on reasonable grounds that the
misconduct of jurors indulging in research
or experimentation of their own, may
have influenced the verdict.
[115] It is difficult to see how any research or experimentation by jurors with the two packets of condoms (if in fact that had occurred), could have influenced the jury’s verdict such as to render a conviction unsafe. The evidence of the ripped condom related to a point in time after the acts of sexual intercourse. The evidence of what happened following discovery of the ripped condom was relevant to assessing the credibility of the complainant and the appellant, whose accounts diverged considerably in relation to what followed the discovery of the ripped condom. But there was no evidence associated with the ripped condom which could have been relevant to the issue of absence of consent or reasonable belief in consent at the time of the acts of sexual intercourse.
Appellant’s remand in custody
[116] The appellant was on bail throughout the trial until the Court
adjourned during the course of cross-examination of the appellant.
The Crown
renewed an application that he be remanded in custody and the Judge
revoked bail. The appellant spent the
night in the cells at the Timaru
police station adjoining the Timaru District Court. In an affidavit he
describes conditions which
he describes as intolerable, leading to him having
little or no sleep that night.
[117] The decision to continue bail, or to remand the appellant in custody,
was one within the discretion of the trial Judge. It
can have no relevance in
the context of this appeal, unless it can be shown that the detention overnight
resulted in unfairness to
the appellant in the trial. There is no evidence to
suggest that this was the case. Cross-examination of the appellant continued
the
following day. No issue was raised with the trial Judge concerning a
detrimental outcome for the appellant of the overnight
detention.
Result
[118] For the reasons set forth under the headings Consent
and Onus and
Standard of Proof, we conclude that there has been a miscarriage of
justice.
[119] We have concluded that there are other factors which contributed to
the appellant not receiving a fair trial (refer: Recent complaint,
Criticism of trial counsel, Conduct of trial counsel
(a)).
[120] The appeal against conviction is allowed. A retrial is
ordered.
Solicitors:
Crown Law Office, Wellington
NZLII:
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