R v A (CA508/04) [2005] NZCA 399 (28 November 2005)

Last Updated: 21 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

_CA508/04

THE QUEEN

v

_{A (CA508/04)}

Hearing: 22 November 2005

Court: Hammond, Williams and Gendall JJ Counsel: A J Trenwith for Appellant

H D M Lawry for Crown

Judgment: 28 November 2005

_{JUDGMENT OF THE COURT}

_{The appeals against conviction and sentence are dismissed.}

REASONS

_{(Given by Hammond J)}

R V A (CA508/04) CA CA508/04 28 November 2005

Introduction

[1] The appellant, A, was found guilty on one count of sexual violation by rape, after a second jury trial in the District Court at Manukau. He was subsequently sentenced to seven years imprisonment.

[2] A jury had failed to reach agreement at A’s first trial. [3] A now appeals against his conviction and his sentence.

Background

[4] A was previously in a relationship with a woman. They had two children, including the victim, X, who was three years old at the time of the offending. X lived with her mother during the week and A on the weekend.

[5] The Crown case was that on at least one of these visits A had sexual contact with X, whereby his penis penetrated her genitalia. On 8 April 2002 the victim’s mother noticed a discharge coming from her daughter’s genitals. A subsequent examination revealed that the discharge was an infection arising from the sexually transmitted disease gonorrhoea.

[6] A was spoken to by the Police. He said he sometimes shared a bed with both of his children when they were staying with them, but everyone wore clothing. He said he sometimes also shared a bath with both children, as it was the only way he could watch them at the same time as bathing himself.

[7] A denied any sexual involvement with X, and claimed that the only opportunity for the infection to be passed between them was when they were bathing together.

[8] There was no physical evidence of penetration of X. Perhaps this was a factor in the inability of the jury at A’s first trial to reach a verdict. He was however convicted by the jury at the second trial, and this appeal then followed.

[9] Subsequently - indeed only shortly before this appeal was to be heard - counsel for the appellant (who was not the trial counsel) became aware for the first time that a man (Y) who was the tenant of the house in which A was also residing in Auckland during the relevant periods when X came to stay with A, had also experienced the symptoms of gonorrhoea. This had led him to seek medical treatment in early May 2000. The disease was subsequently medically confirmed, and Y was treated for it. This evidence was of course not available to the jury which convicted A.

The grounds of appeal

[10] As to the conviction appeal, application is made for the admission of evidence from Y, on the ground that it is “fresh”; that it is credible and cogent; and that consequentially a retrial is called for.

[11] Complaint is made as to how the trial Judge, Judge Sharp, handled certain requests by the jury as to a review of the video tape evidence.

[12] As to the sentence appeal, this is put on the basis that the sentence actually imposed on A is manifestly excessive.

[13] We will take each of these three concerns in turn.

Fresh evidence

(i) The law

[14] The overall approach to fresh evidence applications, following R v Bain [2004] 1 NZLR 638 is a two stage one. The first stage is to determine whether the evidence is sufficiently fresh, credible and cogent to qualify for admission. The second stage is a more general inquiry as to what impact the fresh evidence would have had on the jury.

[15] The overall approach was summarised by Tipping J (for the Court of Appeal)

in that case, as follows:

[26] It can therefore be seen that there are in substance three screens or controls which the Court applies in a further evidence case. The first is concerned with freshness, the second with credibility, and the third with whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial. If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate Court but for a new jury at a second trial which the Court will ordinarily order, unless for some good reason, pertaining to the nature of the new evidence or otherwise, the Court in its discretion decides not to order a new trial.

[16] With regard to the first stage, in Bain Tipping J surveyed the authorities and summarised the position as follows:

[18] Before coming to the detail of the various points raised on each side, it is appropriate to examine the rules and criteria which apply to appeals based on the contention that evidence beyond that called at the trial is now available. An authoritative statement of the key points can be found in the judgment of this Court delivered by Richardson J in R v Crime Appeal (CA 60/88) (1988) 3 CRNZ 512 at p 513:

“The jurisdiction to allow an appeal on the ground of discovery of fresh evidence is derived from s 385(1)(c) Crimes Act which provides that the Court shall allow an appeal against conviction if it is of opinion that on any ground there was a miscarriage of justice. This Court has refrained from attempting to set any exclusive test which should be applied in order to determine whether the fresh evidence is of a nature sufficient to establish that there was a miscarriage of justice at the trial. The overriding test must be the interests of justice (R v Arnold [1985] 1 NZLR 193, 196). In general the evidence must be new or fresh in the sense that it was not available at the trial and be relevantly credible and of a nature that, if given with the other evidence adduced, might reasonably have led the jury to return a different verdict (R v Fryer [1981] 1 NZLR 748,

753 and the cases referred to there).”

[19] To similar effect is the unreported decision of this Court delivered by Hardie Boys J in R v Zachan (Court of Appeal, CA 304/94, 11 August

1995) at p 6:

“The Court has jurisdiction to allow an appeal on the ground of the discovery of fresh evidence by virtue of s 385(1)(c) of the Crimes Act 1961. This provides that an appeal against conviction is to be allowed if the Court is of the opinion that on any ground there has been a miscarriage of justice. The Court will normally require that the evidence be fresh in the sense that it was not available at the trial; and that it be credible and cogent in the sense that if given

along with the other evidence in the case, the jury might reasonably have been led to return a different verdict. The overriding test however is the interests of justice. See R v Fryer [1981] 1 NZLR

748, R v Arnold [1985] 1 NZLR 193, R v Crime Appeal (CA 60/88)

(1988) 3 CRNZ 512.”

[20] The principles outlined have been applied in many other cases: see

R v Baker [1976] 1 NZLR 419 (CA); R v Chapman (1991) 7 CRNZ

486 (CA); R v Cassidy [1995] 3 NZLR 184 (CA); and R v Collier (1996)

14 CRNZ 439 (CA).

[17] As to what is required on such an application, Tipping J said:

[22] An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.

[18] With respect to the second stage in Bain, a parallel was drawn with the law relating to the use of the proviso in s 385(1), to the effect that, when considering fresh evidence applications, this Court should consider whether the application would influence a jury acting reasonably:

[24] If the further evidence does not qualify for admission, leave to admit it will not be granted and that will be the end of the matter. If it does qualify the Court then moves to the next stage of the inquiry, which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.

[25] The Court is therefore engaged in considering what effect the new evidence might reasonably have had on the jury. This focus on the effect of the new evidence on the jury is consistent with the jurisprudence relating to the proviso to s 385(1): see R v McI [1998] 1 NZLR 696 (CA), and the recent decision of this Court in R v Howse [2003] 3 NZLR 767. In that field the Court is concerned with whether the jury (not the Court: see McI at

p 711) would nevertheless have convicted had the posited miscarriage of justice not occurred. The need for the appellate Court in a new evidence case to consider its effect on the jury is also consistent with the fundamental point that the ultimate issue whether an accused person is guilty or not guilty is for a jury, not for Judges. The appellate Court acts as a screen through which the further evidence must pass. It is not the ultimate arbiter of guilt, save in the practical sense that this is the effect of applying the proviso, or ruling that the new evidence could not reasonably have affected the result.

(ii) This case

[19] There is no dispute in this instance that the evidence mentioned in [9] above is “fresh”, in the relevant sense. And it is “credible” in the sense that medical records were exhibited to confirm Y’s statement. The sole issue before us is as to its force: whether it would have any bearing, and if so of what quality, on the consideration of this case by the jury.

[20] The first point to be disposed of here is that it was not suggested before us that Y is an “alternative” perpetrator of the abuse of this child. In fairness to Y, that was put to him in cross-examination, and he denied any such proposition.

[21] Mr Trenwith’s argument lay elsewhere. Essentially, his proposition is that it was not definitely established that gonorrhoea cannot be asexually transmitted, and that the presence of a further possible source of gonorrhoea increased the area of doubt to the point that the conviction is not safe.

[22] To understand the argument it is necessary to go back to the way the defence was run before the jury, and the evidence which was adduced at trial. Counsel for the defence – seemingly encouraged by a proposition in Blacks Medical Dictionary that gonorrhoea can be contracted asexually – mounted a defence to precisely that effect. This because the strain of gonorrhoea shared in common by A and X was a relatively rare one; and DNA tests also supported commonality between father and daughter. Realistically, the only plausible defence was that the disease did not have to have been transmitted through sexual contact.

[23] The evidence of the Crown expert witness on this point was quite to the contrary. Dr Patricia Say is a specialist venereologist at the Auckland Hospital STD

Service, who also has extensive experience with sexual abuse cases involving children, for both defence and prosecution cases.

[24] Her evidence was that it “has never been confirmed” that gonorrhoea has been transmitted from “inanimate surfaces” such as towels and sheets. She suggested the learning of the literature is that “[gonorrhoea] is not spread by inanimate objects ... there is no evidence [it can be]”. She said the statement in Black is hopelessly outdated.

[25] There is no appeal point directed against the summing up in this case. Accordingly we do not have it. It must therefore be taken for the purpose of the appeal that the trial Judge fairly put the defence contention – that non-sexual transmission of gonorrhoea was possible – to the jury, but that it rejected the defence case of just such a possibility.

[26] Mr Trenwith suggested to us that nevertheless what amounts to a “residual doubt” remains as to just that possibility, and that the addition of another possible source of infection (Y) must necessarily give rise to such a degree of doubt that a new trial should be ordered.

[27] To put matters thus is to re-traverse the very concern which was ventilated at length before the jury – viz, whether the disease can be non-sexually transmitted – and which it must necessarily have rejected to reach the verdict it returned. And no medical evidence was tendered before us to show that an “additional possible source” somehow would, or even might, alter the consideration of this particular case.

[28] In our view therefore, this admittedly fresh evidence has no relevant legal force. This head of appeal is dismissed.

The video evidence

1. The jury request

[29] The factual context of the concern under this head of appeal is this. After the jury had been retired for some time the foreman handed up a request: “The jury wishes to watch the video.” Attached to the request were a series of notes, which occupied approximately four pages of (relatively wide-spaced) handwriting. The pieces of evidence the jury wished to see related to a number of pages from page 5 through to page 30 of the transcript of the first video interview, and page 3 to page 25 of the transcript of the second video interview.

[30] The Judge thereupon saw counsel in the usual way. We have a record of what transpired. Ms Tuilotolava said to the Judge “obviously the jury is interested to see his demeanour and his voice because they’ve got – ” at which point Judge Sharp interrupted and said, “They have not mentioned that. They have not mentioned the reasons that they wanted to see extracts.” Ms Tuilotolava went on to express concern that, in light of what had been requested by the jury perhaps the whole of the two videos should be played. We infer that the Judge must have looked alarmed at that prospect, because counsel is recorded as saying:

I know. I’m just concerned that it might unnecessarily highlight the aspects

... that is my concern Ma’am.

[31] After hearing from the Crown, the Judge said:

Ms Tuilotolava’s concern is balance, which is a concern that I can understand. I don’t know their reason for wanting to actually see the video. My inclination, rather than allowing the video in the full footage to be played, which in itself leads to a possible balancing problem, is to say to them that they may not see the whole of the video and if there is an objection to them seeing only part of it because of a balancing issue, and that they either see the whole of the videos or they look at the transcript again. That is one way in which to do it. The other way is first ask why they want to see the video or portions thereof. Probably the first question is the appropriate one to be asked at this stage and perhaps for us [to] discuss thereafter their answer. What do you say to that Ms Tuilotolava?

[32] The following exchange then occurred between counsel and the Bench:

MS TUILOTOLAVA: That you ask about the reason?

THE COURT: The reason why they want to see video footage rather than merely the transcript.

MS TUILOTOLAVA: I just think that might be sort of prying into their business unnecessarily although I can’t see any objections Your Honour. Put it to them that it seems to me that it is the demeanour that you are wanting to see.

THE COURT: No I don’t want to suggest things to them.

MS TUILOTOLAVA: Oh, right. Otherwise they might give a whole lot of reasons that we shouldn’t be hearing.

THE COURT: Well we don’t comment on their reasons, if they tell us their reasons it is of no moment it is if there is any answer to their reasons given that there is a problem.

MS TUILOTOLAVA: All right. Perhaps I’m being over-cautious but I’m only worried about -

THE COURT: I think you are being over-cautious frankly but I can understand it.

MS TUILOTOLAVA: The combination of the time is about what - and hour and a half?

THE COURT: Nearly two hours I think, forty-give minutes.

MS ADAMS: Yes fifty minutes and just over forty-four minutes, yes so an hour and three quarters.

THE COURT: I have a concern about spending that length of time when they have been deliberating already for 7½ hours frankly.

MS TUILOTOLAVA: All right, I’m in Your Honour’s hands really, I’m sorry, can’t assist.

MS ADAMS: Your Honour perhaps offering another choice - all or nothing might sort of resolve the situation?

THE COURT: I think perhaps on reflection that might be the best and I

might call them back into Court and do that so you can observe their answer.

[33] The jury was brought back into the courtroom at 8.27pm, and the Judge said:

Members of the Jury, I have had discussion with counsel. The excerpts from the video interview that you indicated that you wanted to see are ready for you to see but an issue has been raised as to balance and we are all concerned, in retrospect, that if you see only certain portions of the video interviews that you are not going to receive a balanced impression of the interviews that were conducted, which of itself may then be unfair to the accused. I do not know your reasons for wanting to see the video footage as

opposed to reading the transcript which you have with you and I am not going to enquire into them but after discussion with counsel, we have decided that it is probably under the circumstances of that concern, appropriate for me to offer you, either the option of seeing all of the video footage in its entirety now, or just referring you back to the transcript to answer whatever the questions that you have are. So if you would like to retire and discuss that now you can, we will wait in Court, otherwise if you feel that you are able to answer it now then do so.

MR FOREMAN: I think we would like to retire and discuss it.

[34] There appears then to have been a discussion amongst the jury for some

15 minutes until 8.44 pm, at which time it came into Court again. The Foreman advised the Judge “we would be happy to take the transcripts of the tapes in their entirety back into the room ...”. The jury then retired again at 8.47 pm.

[35] Mr Trenwith’s complaint with what occurred is that Judge Sharp should (with the assistance of counsel) have inquired as to the jury’s reasons for wanting to have the particular extracts it had specified replayed to them. The suggestion is, and this mirrors the concern expressed by defence counsel at the trial, that it might be possible to see in the matters raised by the jury what A’s demeanour was; in short, that their concern may have been non-verbal matters.

[36] As to the law, Mr Trenwith said he had been unable to locate authority of assistance.

[37] However, we note that this Court considered a similar question in R v Fainuu

CA203/03 31 March 2004. McGrath J there said:

[46] It is well settled that a trial Judge has a discretion to direct that a videotape forming part of the Crown’s evidence should be replayed, subject to ensuring that any reinforcing effect on the Crown’s case is properly balanced, for example by having a transcript of cross-examination read out: R v Webby CA277/95, 22 September 1995; R v S CA215/00, 28 August 2000 para [12]. As we emphasised in the latter case, however, how such a matter is handled is very much for the discretion of the trial Judge, who of course carries an overarching responsibility for deciding what course best serves the interests of justice at a trial. The Judge is not required to follow the preferences of counsel even where they agree.

... The Judge's preference for a reading of the transcript reflected his view that this was the safer and most appropriate course generally and in the circumstances before him. This is in accord with the judgment of the English Court of Appeal in R v Rawlings [1995] 1 All ER 580 where,

however, Lord Taylor CJ delivering the judgment of the Court helpfully suggested that a Judge might enquire of a jury as to the reason for a request and then confine what was provided to the notes of evidence if the jury responded that it wished to be reminded of what was said, rather than how it was said. That course would also be open to a New Zealand trial judge and in the normal course would not give rise to any concern over intruding into the jury’s deliberations (cf R v O [1996] 3 NZLR 295, 299-300). We are satisfied that there is no basis for interfering with his exercise of his discretion. This ground of appeal accordingly also fails. (Italics added.)

[38] In summary, there is authority in this Court, and the English Court of Appeal, for the proposition that the Judge can ask questions of the jury as to why they wish to see a video or transcript again. However whether the Judge actually takes that course is a matter for the sound discretion of that Judge, and there would have to be a most unusual set of circumstances before this Court would interfere.

[39] In this case, the Judge clearly had a concern that the jury were already deliberating into the evening. That was a relevant consideration. The jury were offered alternatives, and professed itself as being “happy” with the option it elected to take. There was no element of coercion on the jury, or any expression of concern from it. The jury notes, on their face, appear to us to suggest that what the jury really wanted was confirmation of certain pieces of information.

[40] We therefore reject this ground of appeal. No miscarriage of justice has been demonstrated under this head.

The sentence appeal

[41] The Judge took an entirely conventional starting point of eight years imprisonment for this offence. She did not – as she could well have been done – add anything for the clearly aggravating factors such as age, the breach of trust, or the transmission of disease. A ten-year starting point could not have been criticised. The appellant received a one-year discount for his mental condition.

[42] The resultant seven-year sentence cannot be said to be excessive, and the sentence appeal is dismissed.

Solicitors:

Crown Law Office, Wellington