R v Wayne CA413/04 [2005] NZCA 364 (15 September 2005)

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

_CA413/04

THE QUEEN

v

_{DANNY WAYNE}

Hearing: 17 August 2005

Court: Glazebrook, Goddard and Gendall JJ Counsel: E A Hall for Appellant

D J Boldt for Crown

Judgment: 15 September 2005

_{JUDGMENT OF THE COURT}

_{Appeal against conviction is dismissed.}

REASONS

_{(Given by Goddard J)}

R V WAYNE CA CA413/04 15 September 2005

[1] This is an appeal against conviction on charges of rape and aggravated burglary following trial by jury in the Wellington District Court on 21 June 2004. The appellant contends that he did not receive a fair trial because of errors made by his trial counsel that singly or in combination led to a miscarriage of justice.

The facts

[2] The appellant and the complainant had been in a relationship for almost a year. In July or August 2002 they left Marton and moved to Wellington where they rented a room in a house in Karori belonging to Mr Laracy, a friend of the appellant. In January 2003 the complainant had a pregnancy termination. Following that event their relationship deteriorated significantly and the appellant moved back to Marton leaving his furniture and other belongings in the house in Karori. He was however unable to accept that the relationship was over and continued to make it clear that he wished it to resume. The complainant did not wish to reinstate the relationship beyond friendship.

[3] On 13 February 2003 the appellant telephoned the complainant and arranged to call at the house in Karori the following day, Friday 14 February, to collect his belongings. The complainant expected him to arrive in the evening but he arrived at

8.00am and walked into her bedroom where she was still asleep in bed. She awoke to see the appellant entering the room and uplifting her cellphone, which he then scrolled through looking for messages. On finding messages that he did not like he became angry and grabbed the complainant by the throat. He pulled her off the bed and slammed her against the door, accusing her of cheating on him with somebody else. He then opened a bottle of beer and poured its contents over the complainant and held the bottle to her cheek whilst threatening to “smash” her with it. The complainant tried to escape from the bedroom but the appellant put his weight against the bedroom door and held the handle. Eventually he released her after telling her that he would come back in the afternoon with a trailer to collect his belongings. The complainant said she felt really scared and did not know what to do, so she just took all her clothes out of the appellant’s chest of drawers and got his other things ready for him to uplift. Later that same morning the appellant

telephoned her to apologise for his behaviour and said that he could not get hold of a trailer and would return the following weekend to collect his belongings. The incident was reported to the police.

[4] During the week that followed the appellant sent the complainant three text messages, two of which were abusive and threatening. The complainant said that she was afraid to stay at the Karori address because the appellant had a key to it and thus “could just waltz in any time he wanted”. She arranged to stay at different friends’ houses during the week and also went to Marton where her parents lived. Whilst there she saw the appellant and they made an arrangement for him to call at the Karori house on Friday 21 February 2003 to uplift his belongings. It was agreed that they could spend some time together that evening if the complainant were not called into work at the bar on Allen Street where she was employed.

[5] On Friday evening the appellant came to the address as arranged but the complainant was called into work at about 7.00pm. The appellant was annoyed by this and said he would have to come back and uplift his belongings at some other time. However, on several occasions during the early hours of the following morning he drove past the bar where the complainant was working. From what he saw he formed the view that the complainant had lied to him about the necessity for her to work that evening. At about 5.00am he stopped his car outside the bar and went to the window where he pointed at the complainant’s male work colleague and threatened to kill him. Later that morning the appellant telephoned the bar and made further threats against the complainant’s colleague.

[6] In a police interview later the appellant said that after he had driven past the bar several times he returned to the house in Karori where he sat drinking bourbon and waited for the complainant to arrive home, which she did at approximately

7.30am. When she arrived the appellant said that he “just lost it” again but “more I

think this time”.

[7] The complainant’s evidence was that when she returned home at 7.30am the appellant told her she would have to pay for making such a fool of him and demanded her cellphone. When she refused to give it to him he put his hand over

her mouth and forced her down the hallway to the bedroom. He told her to lie on the bed, gagged her with a t-shirt and bound her hands behind her back with a g-string. He then found her cell phone and sat on her chest flicking through the messages. The complainant said she was crying and panicking and trying to scream despite the gag. The appellant got a pillow and started to smother her with it, putting his whole body weight on her face. When she stopped trying to struggle he removed the pillow and told her that he was “not finished with her yet”. He also told her that he was going to kill her and then kill himself because he could not live without her. He removed the gag and tried to kiss her, then removed her pants and squirted baby oil around her groin area. He then raped her and while he was raping her held his hands over her mouth. The complainant said the rape lasted only 20 - 30 seconds before the appellant suddenly stood up, pulled up his pants and left the room. He then returned with a knife and untied the complainant’s hands, telling her to get dressed because they were “going for a ride”. Her evidence of the conversation that then followed was:

A. He was saying that he had to do this. He had to kill me. Q. Why?

A. Because he didn’t want to go to jail for rape.

Q. When he said that, was he still holding the knife? A. Yep.

Q. Before he said that to you had either of you used the word rape? A. No.

Q. Is that the word he used? A. Yes.

Q. What did you say at this point?

A. I said to him that if he left now no one would ever have to know about it and I wouldn’t tell anybody.

Q. What was your motivation for saying that?

A. I just wanted him out, I just wanted him to leave and the first thing that came to my head was that if I told him I wouldn’t tell anybody that he would just go.

Q. Had the threats he’d made had any effect on you?

A. Yep I was scared for my life I really thought he would kill me.

Q. When you told him if he left you wouldn’t tell anyone, how did he react?

A. He started to get emotional and said that this wasn’t the way that it was supposed to be and that he always mucks things up but he never meant to hurt me and that he’s sorry.

Q. How often did you tell him if he left you wouldn’t tell anyone? Once or more than once?

A. More than once.

[8] The appellant calmed down and put the knife away. He then began to pack up his belongings and loaded them into his car. He left the garage key and his house key on the couch saying that he would not be back again. The complainant said that as he left he said:

... that the only reason he didn’t kill me was because I wasn’t going to tell anybody and I wasn’t going to go to the police.

She was asked:

Q. When you first mentioned to him you wouldn’t tell anyone, had you mentioned the police in that?

A. Yeah I said that [I] wouldn’t tell anybody, I wouldn’t tell the police, nobody would have to know about it.

[9] After the appellant left, the complainant contacted her work colleague to say that she would be unable to work that night. She then reported the incident to the police, but without mentioning that she had been raped. Later at the police station when giving a statement she sent the appellant a text message that read “I’m getting a restraining order but I’ll never tell them what you really did to me – I love you”. The appellant responded with a text message which read “Can you tell me what they’re charging me with then if you go I’ll see them”. The complainant replied “I didn’t tell them what you did to me if that’s what you want to know”.

[10] The appellant contacted the police by telephone later that day. He said that he understood he was to be charged with threatening to kill and breach of a restraining order and was advised that no decision had been made as to what, if any, charge would be laid against him but that the police wished to speak with him. The

appellant said to the officer with whom he was speaking that he had been under pressure and had lost the plot and freaked out and that he was happy to co-operate with the police.

[11] He gave a video interview on 24 February 2003, in which he frankly accepted responsibility for having threatened, kidnapped and assaulted the complainant. He said that he had been “in the mood to kill” the complainant on 22 February when he forced her into the bedroom but when asked if he had removed any of her clothing at any stage he denied having done so. At the conclusion of the interview one of the interviewing officers said to him:

I think you’ve been honest and told us pretty much what happened, you’ve been straight up with us and there’s nothing more you can add.

[12] This apparent frankness on the appellant’s part at interview, and the acknowledgement of that by the interviewing officer, formed an important part of the defence case at trial.

[13] In early May 2003 the appellant indicated that he wished to apply for bail at his next court appearance, which was to be on 9 May. On 7 May the complainant was asked about her attitude to bail and disclosed the incident of rape on

22 February. The police included this new disclosure and her strong opposition to the appellant’s release in their grounds of opposition to bail. The result was that the appellant did not apply for bail on 9 May and when the police sought to interview him about the rape allegation he denied that there had been any rape and refused to answer questions or sign the officer’s notebook.

[14] Shortly afterwards he pleaded guilty to a number of charges: kidnapping and assault of the complainant on 14 February and threatening to kill her on that date.

[15] On 21 June 2004 the appellant was tried on the remaining charges: threatening to kill the complainant’s work colleague (who the appellant had believed to be her new partner); detaining the complainant without her consent on

22 February 2003; raping her on the same date; and entering the house at Karori on that date with intent to commit a crime therein and using a knife as a weapon whilst

in the house. On arraignment he pleaded guilty to the charges of threatening the work colleague and of detaining the complainant without her consent. He was found guilty by the jury on the remaining charges of sexual violation by rape and aggravated burglary and sentenced to concurrent sentences of 10 years imprisonment for rape and five years imprisonment for the aggravated burglary.

Grounds of appeal

[16] The appellant now appeals his convictions for rape and aggravated burglary on four grounds. First, failure by trial counsel, Mr Nisbet, to object to the admissibility of evidence led at trial about the incident on 14 February and events during the week that followed and the playing of that part of his video interview in which he spoke of those incidents. Second, failure by trial counsel to call Mr Laracy to give evidence about the payment of rent and about his observations of the appellant’s relationship with the complainant. Third, failure by trial counsel to put directly to the complainant that her complaint of sexual violation was falsely motivated by advice that the appellant wished to apply for bail. Fourth, failure by trial counsel to address the jury on the aggravated burglary charge.

[17] Ms Hall submitted that the cumulative result of these alleged errors was an unfair trial and a miscarriage of justice.

[18] The well-established principle, as refined by the Supreme Court in Sungsuwan v R [2005] NZSC 57, is that where such a ground is advanced the appellant must demonstrate that the error or combination of errors resulted in a real risk of a miscarriage of justice: see, for example, the following statement of Gault J at [70], when delivering the judgment of himself, Keith and Blanchard JJ:

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.

[19] On appeal the appellant sought leave to adduce affidavit evidence from the appellant and from Mr Laracy and waived privilege. The Crown responded by filing affidavits from Mr Nisbet and from junior counsel, Mr Lillico. Cross-examination of all four deponents was permitted.

Ground one: the evidence of the earlier incidents

[20] This ground of appeal was predicated on the assumption that the evidence Ms Hall contends should have been objected to by Mr Nisbet was inadmissible; either because it was irrelevant or because its prejudicial nature outweighed its probative value. However that evidence, of the incidents on 14 February and during the week that followed, was admissible because it was directly relevant to the live issues at trial. The defence case in relation to the sexual violation charge was that no rape had occurred; the defence case in relation to the aggravated burglary charge was that entry to the house in Karori property was lawfully gained and without any intention to commit a crime therein. If the evidence relating to those charges had been simply confined to the incidents themselves that would have artificially deprived them of their relevant context. That context was the breakdown of a relationship and the appellant’s inability to accept that the relationship had ended. The earlier incidents on 14 February and the events that then followed were part of the narrative of offending that culminated in the alleged incidents on 22 February

2003. They provided the relevant context in which the jury were required to assess the appellant’s developing attitude towards the complainant and the specific nature of his intentions on 22 February. Antecedent behaviour of such direct relevance was highly probative of a jealous and possessive attitude and thus relevant to motive. The evidence was therefore admissible unless its prejudicial nature outweighed its probative value, which it did not.

[21] Numerous authorities illustrate this principle. For example: R v S (1991)

7 CRNZ 135, in which a prior act of violence committed by an accused against the complainant was admitted to rebut the accused’s explanation that the sexual encounters were consensual; R v Dahlberg CA190/92 17 December 1992, in which a background of bitter matrimonial disharmony and fear of the accused was found

relevant both to the accused’s state of mind or motive and to rebut any innocent explanation for his wife’s unexplained disappearance; R v Su CA407/00

5 July 2001, in which the prosecution led evidence of prior threats and acts of violence by an accused against his wife and in which this Court “view[ed] the evidence as simply part of the narrative of events and as descriptive of the relationship between the appellant and his wife over a period of time reasonably proximate to her death. It was undoubtedly relevant to the appellant’s intention and state of mind at the time of the killing”; and R v A CA136/03 24 July 2003, in which evidence of previous violent acts committed by the accused against the complainant were held to be readily admissible in a rape trial where consent was the issue. An example where antecedent behaviour that was relatively remote in time was nevertheless held be relevant to the issues at trial was R v Watson CA384/99

CA507/99 8 May 2000.

[22] In the present case where, by his own admission, the appellant had assaulted and threatened the complainant only a week earlier, followed up by abusive and threatening text messages, the evidence of those incidents as part of a continuing course of conduct on his part could not be other than highly probative. His entry of guilty pleas to those earlier incidents did not render the evidence relating to them inadmissible. Indeed, had the appellant maintained his not guilty pleas to all charges, all would have been tried together in the one indictment with no severance of any counts ordered.

[23] This ground of appeal must fail.

Ground two: failure to call Mr Laracy

[24] Whilst there is force in the submission that Mr Laracy would have impressed as an honest and reasonable man, who had never witnessed anything untoward in the appellant’s behaviour either generally or specifically toward the complainant and who still remained a loyal friend to the appellant, his evidence could have had little further effect.

[25] The appellant now accepts that the Crown was not required to prove that he entered the house in Karori unlawfully on 22 February; simply that he entered it with intent to commit a crime therein and whilst inside used a knife as a weapon. On the evidence, it was open to the jury to conclude that this was proven, particularly given the appellant’s own admission to the police that he had obtained and used a knife whilst in the house and in the manner described by the complainant. Further, under cross-examination before us, Mr Laracy said it was the complainant who had paid the rent in the last week or two after the appellant had moved to Marton.

[26] The other evidence that Mr Laracy could have given, of never having witnessed any violent or threatening behaviour on the part of the appellant towards the complainant, could have little or no weight when, by the appellant’s own admission, he had behaved in such a manner on 14 February 2003 whilst alone with the complainant. In any event, the complainant in her own evidence agreed under cross-examination by Mr Nisbet, that up until the incidents on 14 February, the appellant had always behaved as a gentleman towards her.

[27] The appellant contended that he had expected Mr Laracy to be called as a witness because he felt it important for the third person in the house to give “his side of the story”. He was adamant that at no point had Mr Nisbet indicated that he was not going to call Mr Laracy to give evidence. When asked why, before his election was formally advised in Court, he had signed a note handwritten for him by Mr Nisbet stating that “... after receiving legal advice I elect not to give or call any evidence”, his explanation was that when the Crown case closed and Mr Nisbet met with him in the cells to discuss the defence’s election, his:

... head was in a hundred different approaches anyway, and the only thing that was discussed in the holding cell was that I would not be going out to give evidence.

[28] Mr Nisbet was however clear in his evidence that he never received a firm instruction for Mr Laracy to be called as a witness, although he had briefed his evidence and knew that Mr Laracy was available at the courthouse to be called if required. Mr Nisbet said that when the time came to advise on the election he was of the view that Mr Laracy’s evidence would not assist the appellant and that there were risks inherent in calling him. He said he believed the appellant accepted that advice,

along with the advice that he could not improve on the favourable impression he had made in his video interview by giving evidence himself.

[29] Given the stress of a jury trial, it would be entirely understandable for the appellant not to recall every detail of information and advice given to him. Whilst he clearly recalls that part of the election discussion that was most important to him, (whether he should give evidence himself) understandably he may not have absorbed and retained the detail of the discussion relating to Mr Laracy to the same degree. However, it is clear that Mr Nisbet kept open the option of calling either or both the appellant and Mr Laracy to give evidence at trial and that it was not until after he assessed the situation at the close of the Crown’s case that he advised it would be better not to risk diluting the effect of the appellant’s favourable police interview by calling any evidence. We are satisfied that Mr Nisbet’s advice in this regard was for sound tactical reasons and cannot be categorised as a trial error and certainly not one that occasioned the risk of a miscarriage of justice. We also accept that advice not to call Mr Laracy was given during the discussion at the close of the Crown’s case and that the appellant accepted that advice as he acknowledged by signing the handwritten note.

Ground three: failure to put to the complainant that her complaint of sexual violation was falsely motivated

[30] This ground of appeal relates to the apparent delay and timing of the rape complaint by the complainant. The fact of that apparent delay was well explained by the complainant in her evidence, referred to in [7] to [9] above. Her evidence, that she promised not to tell anybody that the appellant had raped her (given at a time when she said he was holding a knife and saying that he had to kill her because he did not want to go to jail for rape) enjoyed a degree of independent confirmation in the text messages subsequently exchanged between her and the appellant.

[31] During his cross-examination of the complainant on the issue of her apparent delay in making the rape complaint, Mr Nisbet elicited her agreement that she was anxious for the appellant to remain in custody and that a false complaint of rape would be one way to ensure that this happened. The careful eliciting of these

concessions entitled Mr Nisbet to then close to the jury on the basis that the complainant was motivated to falsely complain of rape and to suggest that her complaint was designed to not only ensure that the appellant remained in custody on remand but that he also received a lengthy sentence in the event of conviction. We accept Mr Boldt’s submission that the answers as elicited were a strong and prudent note on which to conclude the cross-examination.

[32] Ms Hall’s submission that Mr Nisbet should have gone further and put it baldly to the complainant that she had made a false complaint of rape to ensure that the appellant remained in custody carried the obvious risk of having the value of the concessions nullified by the sort of response elicited by the Crown prosecutor in re-examination, when he asked:

Q. Have you made a false allegation of rape to keep him in custody? A. No I haven’t.

Q. Why did you want him to stay in custody?

A. Because he’s raped me he needs to take responsibility for what he’s done and if I hadn’t reported this I would – if it had happened to anybody else I would feel terrible

[33] There is no substance in this ground of appeal. It is patently clear that Mr Nisbet put the challenge squarely to the complainant on this issue as instructed with a tactical deftness that avoided total rebuff by the complainant and laid the ground for an effective submission to be made in closing.

Ground four: failure to address the jury on the aggravated burglary charge

[34] Mr Nisbet frankly conceded that neither he nor the Crown prosecutor addressed the jury on the charge of aggravated burglary in their closing addresses. This, he said, was because the focus at trial was very much on the rape charge and that rape had been committed in the course of the alleged aggravated burglary. The omission to address on the charge was however noticed by the trial Judge who raised it with counsel before he summed-up and then gave a very clear direction to the jury on the elements of the charge they were required to find proved and advice that the

central focus was on the element of entry to the house with the intention of committing a crime once inside.

[35] As the Crown had not addressed the jury on the charge of aggravated burglary there was nothing specific to which Mr Nisbet needed to respond in closing and it is evident that the focus of the trial was on the more serious charge of sexual violation by rape. It is also evident from the Judge’s summing-up that the jury would have known and understood their task in relation to the charge of aggravated burglary and understood what the case for each side was in relation to that charge.

[36] There is no substance in this ground of appeal.

Conclusion

[37] As emphasised in R v Coster CA538/95 19 March 1996, more is required than a rehearsal of events during a trial where different tactics might have been employed, had other counsel been instructed. In the present case it cannot be said that either the inclusion of evidence from Mr Laracy or the omission to specifically refer to the aggravated burglary charge in closing submissions would have produced any different trial result. Nor can it be said that the other matters raised give rise to any concern as to the fairness of the trial or its ultimate outcome in terms of the test articulated by Gault J in Sungsuwan.

Result

[38] The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington