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Court of Appeal of New Zealand |
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
CA204/05
THE QUEEN
v
MARTIN CHARLES COX
Hearing: 15 November 2005
Court: O’Regan, Baragwanath and Doogue JJ Counsel: D R LaHood for Appellant
B M Stanaway for Crown
Judgment: 7 December 2005
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
sentence of imprisonment of four years is
substituted.
REASONS
(Given by O’Regan J)
R V M C COX CA CA204/05 7 December 2005
Introduction
[1] The appellant was convicted after a jury trial in the
District Court at Christchurch of one count of assault
with intent to commit
sexual violation and one count of sexual violation by unlawful sexual connection
(digital penetration). He
was sentenced by the trial Judge, Judge Holderness,
to a term of imprisonment of five and a half years. He appeals against both
conviction and sentence.
Factual background
[2] The incident which led to the charges took place on 20 May 2003.
The complainant is a citizen of Brunei who was a regular
visitor to New Zealand
for the purposes of undertaking studies for her Ph D degree at Canterbury
University. She is a married Muslim
woman, aged in her early thirties at the
time of the incident. She was known to the appellant, because she was a friend
of the appellant’s
wife, who is a Muslim woman of Singaporean nationality.
The appellant and the complainant had met on two or three occasions before
the
incident. On one occasion the complainant had dinner at the home of the
appellant and his wife.
[3] The complainant’s account of the incident and that of the
appellant contained much in common. The essential difference
between them was
that the appellant maintained that the sexual conduct which took place was
consensual or, at least, that he believed
on reasonable grounds that it was
consensual, whereas the complainant said it was not consensual.
[4] The complainant’s account can be summarised as follows. The appellant entered the motel unit in which she was then residing, uninvited. She was still wearing the clothes she had slept in. He made himself a cup of coffee, picked up some oil that was on the kitchen bench and approached the complainant, saying that he wanted to put oil on her head to relieve headaches she was experiencing. She moved away from him and into the bedroom of the motel unit. She explained to him that she had to go to an appointment in ten minutes and needed to get dressed. The
appellant then entered the bedroom, threw her onto the bed and landed on top
of her. He touched her on her legs, removed her skirt,
pulled his trousers down
and began touching her breasts, using his weight to stop her
struggling. He ignored her protests.
He pulled her underwear down,
touched her vaginal area, and digitally penetrated her vagina. He then sat near
her face, apparently
so that oral sex could occur, at which point he ejaculated
over her face and chest.
[5] The appellant’s version of events can be summarised as
follows. He had gone to the complainant’s motel unit
by arrangement to
pick up items before the complainant’s return to Brunei to deal with an
illness she was suffering. He knew
that she had a “woman’s type
complaint”, but did not know the nature of it. (It turned out that she
had ovarian
cancer). There had been previous talk between him and the
complainant about massages to relieve her headaches and other pains.
He offered
her a massage. The complainant retrieved the massage oil and a consensual
massage took place. He accepted that he had
touched her breasts and her vaginal
area, and digitally penetrated her vagina in the manner she described. But he
said that all
of this was consensual, or that he believed on reasonable grounds
that the complainant was consenting. He said the complainant
did not protest
or offer physical resistance. He also accepted that he had ejaculated on the
complainant as she alleged, but said
that he had not intended to do
so.
[6] The appellant had faced a third charge of indecent assault which
related to the ejaculation incident, but was acquitted
of this count by the
jury.
[7] The day after the incident occurred the complainant returned to
Brunei. She made a brief statement to the police at Christchurch
Airport before
her departure, and she also made complaints to other witnesses prior to her
return to Brunei. Some ten and a half
months after the incident the complainant
returned to New Zealand and made a formal complaint to the police, leading to
the arrest
of the appellant.
Conviction appeal
[8] Five grounds of appeal against the conviction on both counts were advanced. There were:
(a) The Judge erred in law in allowing the prosecutor to re-examine a
witness, Ms Thomson, on the entirety of the statement
made to her by the
complainant on 20 May 2003;
(b) The Judge erred in law in directing the jury that the evidence of
Ms Thomson (referred to above) was evidence of recent complaint;
(c) The prosecutor’s cross-examination of the appellant was
improper and unfair, and led to a real risk of a miscarriage
of
justice;
(d) The Judge’s failure to intervene in the cross examination
referred to above, and to direct the jury to disregard the
improper questioning,
led to a real risk of a miscarriage of justice;
(e) The Judge erred in law in directing the jury on the standard of proof.
[9] We will deal with these in the order set out above.
(a) Re-examination of Ms Thomson on the complainant’s statement to
Ms Thomson
[10] The appellant’s case was that the massage involving the use of
oil was consensual, and that it was the complainant who
had retrieved the oil
from the bedroom of the motel unit for the purpose of the massage.
[11] In her evidence-in-chief, the complainant said that the oil was in
the kitchen of the motel unit, and that the appellant
had seen it there while he
was making coffee for himself. She said that he then came to her and said that
he wanted to put it on
her head, but that she said she did not want that to
happen and went to her bedroom.
[12] In cross-examination, defence counsel (not Mr LaHood) put it to the complainant that there had been a discussion between her and the appellant about oil for the purpose of a massage, and that she had found oil in her bedroom and provided it to the appellant for that purpose. She denied this. He then asked her whether she agreed that she had told the witness Ms Thomson, during a conversation
shortly after the incident, that she, the complainant, had gone to her
bedroom to look for oil after the appellant had asked her for
some oil. She
denied having said this to Ms Thomson.
[13] The conversation which took place between the complainant and Ms Thomson shortly after the incident included recent complaint evidence. Ms Thomson had been briefed as a recent complaint witness, but as complaints had been made to three other witnesses, it had been agreed between counsel prior to the trial that Ms Thomson’s evidence of the complaint made to her was not admissible as recent complaint evidence and that her evidence as to the complaint would not be led by the Crown. However, she was still a witness at the trial, in relation to certain events involving the appellant and the complainant prior to the date of the 20 May
2003 incident.
[14] In cross examination, defence counsel, apparently seeking to elicit
evidence that the complainant had told Ms Thomson that
she, the complainant, had
retrieved the oil on the day of the incident, had the following exchange with Ms
Thomson (we have used
“A” for the complainant; the appellant is
referred to as “Joe”):
Q. On the Tuesday the following Tuesday which is 20 May you
received a phone call late that night, 10.30 maybe 11.30
pm.
A. Yeah around that yeah. Q. From A.
A. Yep.
Q. And that’s when she was upset and you then went round to see her. A. Yep.
...
Q. And when you were talking about her being upset. A. Yeah.
Q. Do you remember she said to you that the thing that had upset her
started with this same thing that had happened at Joe’s
house where he
wanted to put oil on her head.
A. No it didn’t, she was crying when she called me.
Q. Yes.
A. She, it took me quite a while to actually make her speak out
because she only mention, Joe, Joe, Joe, so it took me a while
to say what, what
is happening you know. And then she said, um, um, he, said “Joe try to
put his finger on her private part”.
Q. I think she started by saying to you that Joe had tried to kiss
her.
A. Yes she did after that so I, after she said because she was
already in such a shock that know what happened and then from
there when I went
to the motel then she start telling me briefly how it started, how the incident
started.
Q. And did she say to you “Molly do you remember the night we
went to his house and he kept wanting to put oil on my
forehead”.
A. Yeah.
Q. That’s how it started. That’s what A – A. Mmhmm.
Q. - said to you.
A. Yeah. Mmhmm.
Q. And in relation to this use of the oil did she tell you that in
her unit that day.
A. Mmhmm.
Q. That Joe had asked her for some oil and she went into her bedroom
to look for her oil.
A. Yes she did.
Q. And then did she say she found some and then Joe tried to use it
on her.
A. Yes.
Q. And was she indicating to you that Joe had asked her to get some
oil, she went to her bedroom, got some and then –
A. Um, if I’m not mistaken she say Joe is asking for some oil
and then he went inside for start look for the oil and
he couldn’t find it
and she went in and look for the oil for him.
Q. In her bedroom.
A. Yeah in the bedroom.
Q. And she said to you then that Joe tried to put it on her forehead with his fingers.
A. Yes.
A. No, no.
[15] This exchange occurred immediately after defence counsel had
asked Ms Thomson about an incident a few days before
20 May 2003 when the
appellant had said to the complainant in Ms Thomson’s presence that he
wanted to rub oil on the complainant’s
head to relieve a
headache.
[16] In re-examination, the prosecutor then asked Ms Thomson what else
the complainant had said to her during the conversation
when the oil had been
discussed. This led to an objection from defence counsel. The Judge then made a
ruling to the effect that
the prosecutor could elicit evidence from Ms Thomson
as to the whole of the statement made to her by the complainant shortly after
the 20 May 2003 incident, including the complaint made by the complainant to Ms
Thomson at that time. The Judge said that he accepted
the prosecutor’s
submission that the questions put by the defence counsel to Ms Thomson were
intended to impugn the credibility
of the complainant in relation to a matter
which was relevant to the central issue in the case, namely, consent. He said
it would
be artificial and unfair for the jury to hear evidence of only one
aspect of the conversation between the two women. He added:
It seemed to me that having become aware, by virtue of [defence
counsel’s] cross-examination, that a conversation between
the
complainant and her friend had taken place on the day of the incident, the
jury, in assessing whether there was any inconsistency
in the
complainant’s evidence, should be entitled to hear all that had been
discussed rather than just one limited portion
of the conversation.
[17] As a result of the ruling, Ms Thomson was asked about, and gave
evidence of, the details of the complaint made to her by
the complainant on the
day of the incident. This involved greater detail of what the
complainant had said to Ms Thomson
than had been stated by Ms Thomson during
cross-examination (see [14] above).
[18] Mr LaHood submitted that the Judge should not have permitted the re- examination which involved Ms Thomson giving evidence of the full conversation
between her and the complainant on the day of the incident, including the
complainant’s detailed complaint about the appellant’s
conduct. He
said that the only issue which had been raised by defence counsel’s
cross-examination was the issue relating
to the oil, and cross-examination ought
to have been limited to that matter only.
[19] Mr LaHood argued that there is a distinction between a
witness giving evidence of a prior oral statement, and
a witness giving
evidence of a prior written statement made by that witness. The latter
situation is dealt within s 11 of the Evidence
Act 1908. In particular, s 11(2)
gives a Judge a discretion to the Judge to require production of the prior
written statement, and
to “make use of it for the purposes of the trial as
he thinks fit”. This can include allowing it to be admitted as an
exhibit.
[20] We were referred to the decision of the British Columbia Court of
Appeal in R v Newall (1983) 5 DLR (4th) 352, in which the
Canadian equivalent of s 11 was in issue. In that case, the Court said that the
only difference as between a
prior oral statement and a prior written statement
was that, in respect of an oral statement, only those portions of the statement
which were cross-examined upon and those portions brought out in re-examination
to qualify or explain parts referred to in cross-
examination are admissible,
whereas in relation to written statements the rule permits reference to the
whole statement.
[21] We do not think that the distinction is of any great moment in the
present case. In relation to a prior oral statement,
we are content to adopt
the statement of the law approved in R v Newall, citing R v Sommers
(No 2) (1958) 26 WWR 243:
...counsel cannot elicit as evidence only such parts of a conversation as may
suit his purposes without exposing himself to the risk
that following counsel,
either cross-examining or re-examining, may bring out such related parts of the
conversation as may qualify
or explain the parts already in evidence. Anything
more may... be wrong; anything less must surely, on all principle, be
unfair.
[22] The issue before us can therefore be reduced to the following question: did defence counsel place in issue aspects of the conversation made on the day of the incident between the complainant and Ms Thomson to an extent that justified the re-
examination of Ms Thomson on the whole of that conversation, not just those
parts of the conversation which had been referred to in
cross-examination.
[23] Mr LaHood said that it was clear that all that defence counsel
sought to raise with Ms Thomson was the aspect of the conversation
relating to
the oil. He accepted that the answers given strayed into other areas, including
the complaint made by the complainant
to Ms Thomson that the appellant had tried
“to put his finger on her private part”. But he said that this
answer was
not something which had been sought by defence counsel’s
questioning, and did not justify the Judge’s decision to admit
re-examination on the full statement. He said the effect of the Judge’s
decision was that there were two recent complaint
witnesses instead of one, and
that this was a matter of significant prejudice for the appellant.
[24] Mr Stanaway argued that the Judge was right to allow the
re-examination on all aspects of the conversation between the complainant
and Ms
Thomson on the basis that this was part of the res gestae. We do not think
that submission is sustainable: if it were, much
complaint evidence would be
admissible and the law in relation to recent complaint evidence is clear when
restricting the evidence,
in all but exceptional cases, to the first complaint
made.
[25] The objective of the cross-examination of Ms Thomson was to elicit answers which supported the defence case that the complainant had willingly participated in the massage (which the defence said was exemplified by her having retrieved the oil for the appellant) and that this had led to consensual sexual activity (or activity which the appellant reasonably believed was consensual). The Judge dealt with the matter as one involving the impugning of the credibility of the complainant, and the arguments in this Court also focused on that aspect of the cross-examination. However, we think that the issue needs to be looked at in a broader context. Defence counsel sought to elicit evidence supporting the defence case, without disclosing that the statement made by the complainant about the oil was made in the context of a conversation, the tenor of which was overwhelmingly one of complaint of non- consensual activity.
[26] The Judge was entitled to form the view that the account of the rest
of the conversation between Ms Thomson and the complainant
was necessary to
explain the comment about the oil, so that the jury did not form the mistaken
impression that the conversation between
the complainant and Ms Thomson was
about consensual activity. Another Judge may have taken the view that the only
challenge to
the veracity of the complainant’s evidence was in relation to
the oil, and that re- examination on the rest of the conversation
would not
provide an explanation of the different recollections of Ms Thomson and the
complainant on that issue. Having considered
that alternative we are not
persuaded that it was the only position open to the Judge: his ruling could not
be said to be wrong.
[27] We have reflected on whether the result of the Judge’s ruling
was disproportionate to the problem it sought to address.
The result of the
ruling was that, in effect, there were two recent complaint witnesses, rather
than one. The complaint made
to Ms Thomson was more detailed than that which
was made to the other recent complaint witness. This effect was mitigated to
some
extent by the direction made by the Judge about the nature of recent
complaint evidence and the limited use to which it could be
put. It is not
however a case where the recent complaint evidence was extensive and much of it
arose through deliberate cross-
examination to attempt to strengthen the
defence.
[28] Ultimately, we need to be satisfied that the Judge’s decision
was consistent with the overarching rule that evidence
with greater (improper)
prejudicial effect than probative value is not admissible. We consider it was.
If the re-examination had
been limited to the question of the oil, the jury
would have had a misleading impression of what had been discussed by the
complainant
with Ms Thomson on a topic which was a key issue at the trial,
namely consent. The re-examination was aimed at explaining the statement
about
the oil. That explanation could not have been achieved by a more limited
re-examination.
[29] On balance, we are not persuaded that the Judge was wrong to permit the re- examination of Ms Thomson which took place. Even if we were to conclude that the result of the re-examination was disproportionate, and that the extensive re- examination should not have been permitted, we do not think that this would, in
itself, have led to a miscarriage of justice. Rather, it would be a factor
to be weighed in the overall consideration of the points
raised on
appeal.
[30] In his oral submissions, Mr LaHood made an alternative submission.
He said, if we were to find that the cross-examination
by defence counsel had
led to the re-examination being permitted, we should find that this was an error
by counsel leading to a miscarriage
of justice: R v Sungsuwan [2005] NZSC 57; (2005) 21
CRNZ 977 at [69] – [70]. We do not accept that submission. The
approach taken by counsel was consistent with the defence theory of the case.
The answers given by Ms Thomson in relation to the oil were helpful to the
defence.
[31] The Judge’s summing up reflected this. He said:
The other perhaps more significant inconsistency which [defence counsel]
dwelt upon relates to what the complainant said to Molly
Thomson about oil and
about going into her bedroom to find or to get some oil. [Counsel] submitted
that oil is the critical matter
so far as the initiation of this incident is
concerned. It is the defence case that the complainant did go into the bedroom
to
get some oil and [counsel] submits that in the circumstances of the case that
is a very important aspect. The complainant of course
denied that there was any
such incident involving oil. You will recall her evidence was that it was in
the main room of the motel
unit, in the kitchen/lounge area, that the accused
found some oil on a bench and that he approached her and raised the question of
whether he could put some oil on her face or forehead to alleviate any
discomfort, headache, backache, whatever. So there is a
complete conflict in
the evidence in relation to oil. [Counsel] submits that having regard to the
evidence of Molly Thomson you
will find inconsistencies in the evidence of the
complainant regarding that aspect of the matter. [Counsel] submitted that while
the accused may have exercised some poor judgment and some cultural
insensitivity what he did was nevertheless not criminal or unlawful
because the
complainant consented, or at the very least he believed on reasonable grounds
that she was consenting. [Counsel] therefore
submits that the proper verdicts
are one of not guilty.
[32] We do not consider that defence counsel’s questioning was in
error. Rather, it was part of a deliberate strategy judged
at the time to be in
the interests of the appellant. We are satisfied that counsel’s conduct
did not lead to a real risk
of a miscarriage of justice.
[33] Mr LaHood said that, if Ms Thomson’s evidence of the complaint
made to her was rightly admitted, then the Judge erred
in directing the jury
that it was recent complaint evidence. He said that it had been agreed
pre-trial that the only recent complaint
evidence which was admissible was the
evidence of a Professor Wake relating to a telephone call made to him by the
complainant, and
the evidence of an employee of the motel at which the incident
occurred, Ms Curtin.
[34] Mr LaHood said that the Judge was wrong to have treated Ms
Thomson’s evidence as recent complaint evidence for the
purpose of his
directions to the jury. We disagree. Once the evidence was admitted it was
clearly evidence of complaint, and it
was incumbent on the Judge to direct the
jury as to the limited use to which they could put it.
[35] Mr LaHood also criticised the nature of the recent complaint
direction, saying that it focused on consistency between what
the complainant
said and did soon after the event, and what she said in evidence during the
trial. He said that this meant the direction
focused on consistency of
complaint, and said that this was an error citing R v Adams CA70/05 22
August 2005 at [75]. We reject that contention. What the Court said in
Adams was that the consistency which is of relevance in recent complaint
evidence is the complainant’s conduct at or near the time
of the alleged
event and her subsequent evidence. The Judge referred to “what the
complainant said and did soon after the
event” rather than using the term
“the complainant’s conduct”. But we do not think that
provides any reason
to criticise the direction. This ground of appeal therefore
fails.
(c) Improper cross-examination by prosecutor
[36] There were a number of aspects of the cross-examination by the
prosecutor which were concerning. Mr Stanaway accepted that
the
cross-examination could have been conducted in a more neutral style and with
fewer admonitions, but he argued that no miscarriage
of justice
resulted.
(a) There were repeated questions as to why aspects of the
appellant’s evidence had not been put by his counsel to the
complainant in
cross- examination;
b) The questions involved statements of personal commentary and the
prosecutor’s own views, was overly aggressive and
sarcastic, and was
designed to demean and humiliate the accused in the eyes of the
jury;
(c) It contained questions that required answers of the
appellant that would put him at odds with the Judge and the
jury;
(d) It contained questions focused on the complainant’s devout
Muslim beliefs and other matters which had the effect
of giving the
impression that the appellant had a burden of proof and infringed s 23A of the
Evidence Act 1908;
(e) It contained questions that had no basis in the evidence.
[38] He referred us to three decisions of the Ontario Court of Appeal traversing these issues. They were: R v R(AJ) (1994) 94 CCC (3d) 168, R v Henderson (1999)
134 CCC (3d) 131, and R v Bouhsass (2002) 169 CCC (3d)
444.
(i) Failure to cross-examine
[39] Mr LaHood said that, if the appellant’s counsel had failed to comply with the rule in Browne v Dunn (1893) 6R 67 by not cross-examining on matters which the appellant was to say in evidence, that was not a matter which ought to have been the subject of cross-examination. He said that such cross-examination invited disclosure by the appellant of privileged communications between him and his lawyer, and was unfair in that it suggested that the appellant was responsible for tactical decisions made by his counsel.
[40] He placed particular reliance on the decision of the New South Wales
Court of Appeal in R v Birks (1990) 19 NSW LR 677. In that case, the
Court of Appeal criticised cross-examination which involved questioning the
accused person about the instructions
he had given to his barrister prior to the
trial, in the context of a challenge to evidence which he had given but which
had not
been put to the complainant in cross-examination. Lusher AJ described
this type of cross- examination in very critical terms at
702-703. The decision
in Birks was considered by this Court in Gutierrez v R [1997] 1
NZLR 192, but the point presently before the Court did not arise in that
case.
[41] As a general proposition, we accept that Crown counsel ought not to
have asked questions which invited an answer involving
disclosure of privileged
communications between the appellant and his lawyer. But we also recognise that
there will be occasions
where Crown counsel wishes to mention the failure to
cross- examine in his or her closing address, and it would not be fair to an
accused to do this without having provided an opportunity for the accused to
explain the matter.
[42] In our view, the appropriate course is simply to ask the accused
whether he has ever previously told anyone about a matter
he has stated in
evidence. He should not be asked to explain why his counsel failed to put a
matter in cross-examination. There
may be many reasons for this, such as a
judgement by counsel that the matter is of insufficient significance to justify
doing so
or an oversight by counsel: the accused having made the statement for
the first time in Court is another possible reason, but not
the only
one.
[43] In the present case, the prosecutor questioned the accused about a number of aspects of his evidence on the basis that these matters had not been put to the complainant. On two occasions the accused acknowledged that what he said in Court was being said for the first time, which would have been elicited even if the approach we outlined above had been adopted. On two other occasions the prosecutor put it to the appellant that he had not previously stated a matter raised in evidence, because he had made it up in Court, and on both of those occasions he denied that this was the case.
[44] Overall, we accept the criticism made by Mr LaHood of this aspect of
the prosecutor’s questioning.
(ii) Aggressive, sarcastic, humiliating
cross-examination
[45] There were a number of unsatisfactory aspects of the
cross-examination. The tone was inappropriate. There were a number
of examples
of sarcasm and personal commentary on the answers of the appellant,
which were inappropriate. Mr Stanaway
responsibly did not contest this
aspect of the appeal.
(iii) Questions putting the appellant at odds with the Judge and
jury
[46] We see this as within the overall scope of (i) and (ii)
above.
(iv) Questions relating to Muslim beliefs
[47] Mr LaHood said that the prosecutor improperly questioned the
appellant on the basis of the complainant’s Muslim beliefs,
and the fact
that she was unlikely to have been consenting to sex with him in the
circumstances of the 20 May 2003 incident. He
said that this appeared to be an
argument based on the premise that a Muslim woman would not have the propensity
to consent to sex
in these circumstances, and that this was improper. He said
it was contrary to pre-trial correspondence between counsel in which
defence
counsel had said that expert evidence would be needed if it was to be suggested
that the complainant’s religious persuasion
was relevant. He also
suggested that it undermined the purpose of s 23A of the Evidence Act
1908.
[48] While there may be grounds for criticism of some aspects of this part of the cross-examination, we think Mr LaHood has mis-characterised the object of the cross-examination. It was not, as he suggested, directed at propensity, but rather at the issue, which was a live issue, as to whether the appellant had reasonable grounds for believing that the complainant was consenting to the sexual conduct that occurred on 20 May 2003.
[49] The object of the questioning was apparent from the
following question which was put to the appellant:
What I am asking you Mr Cox is that a person like [the complainant], or in
fact [the complainant] in May 2003 wouldn’t be sexually
interested in you
and there was nothing at all about that scenario to make you think that she
would be was there?
[50] The appellant answered this “You are incorrect”.
The fact that the complainant was a Muslim was only
one of the elements
leading to this question, there were a number of others such as the fact that
the appellant and the complainant
had only met once or twice previously, the
appellant himself was married to a Muslim and familiar with Muslim culture, the
complainant
was, to the appellant’s knowledge, unwell, and there was a 20
year age gap between the complainant and the appellant.
[51] In a trial where reasonable belief in consent was a live issue, we
do not think this was an unreasonable line of questioning,
though the manner of
questioning was at times inappropriate.
(v) Questions not based on the evidence
[52] There were one or two examples where questions were put to the
appellant which were not based on the evidence. The appellant
gave negative
answers to the questions and no damage resulted. It was at least as likely
that this arose from a mistake by the
prosecutor than from any other cause, and
we do not think it was a matter which calls for any adverse comment on our
part.
Overall assessment: cross-examination
[53] Overall, we conclude that the cross-examination was inappropriate in a number of respects, and conducted in a manner which was inconsistent with the obligation of Crown counsel to conduct himself or herself dispassionately. The appellant was entitled to a trial conducted on that dispassionate basis, and the conduct of the Crown counsel deprived him of that. We are not, however, persuaded
that this, in itself, led to a miscarriage of justice, because the proper
conduct of the cross-examination would also have involved
a vigorous challenge
to the appellant’s evidence, particularly insofar as it was at odds
with that of the complainant.
However, we accept that, in the overall
evaluation of the trial, the improper conduct of the cross-examination is a
factor which
will need to be weighed in the balance.
(d) Failure to intervene in cross-examination
[54] This ground of appeal is closely related to the previous one. The
contention made on behalf of the appellant is that the
problems arising from the
improper cross- examination were compounded by the Judge’s failure to
intervene, and to attempt to
repair the damage in his summing up. Mr LaHood
said that, instead of this, the Judge effectively endorsed the Crown’s
contention
that the complainant’s religious and personal beliefs in her
cultural background made the suggestion that the accused believed
she was
consenting implausible. He also criticised the fact that the Judge repeated the
Crown’s contention that matters such
as the complainant’s religious
beliefs and strict culture, the age gap between her and the appellant, the
subsequent actions
(including complaints) by the complainant, the
complainant’s immediate return to Brunei, jeopardising her studies, all
pointed to the incident having been non-consensual as alleged by the
complainant.
[55] We agree that the Judge ought to have intervened to stop the
prosecutor from conducting the cross-examination improperly.
But we have dealt
with that aspect of the case already and we make no further comment other than
that observation.
[56] As to the repetition of the Crown case in the summing up, we do not
think that the criticism made by Mr LaHood is justified.
The jury had to
consider competing versions of events, in which both sides emphasised
the cultural and religious beliefs
of the complainant. The Crown’s case
was as outlined above, and the Judge accurately summarised it for the
jury.
[57] The Judge summarised the defence case in the following
terms:
[40] When he opened the defence case [counsel] summarised the defence for you. It was an overall summary of the defence along these lines:
whatever occurred during this brief, unplanned, unexpected sexual encounter
did not involve criminal activity. There was nothing
unlawful. [Counsel]
submitted that the accused’s reaction to his ejaculation, which because he
envisaged further sexual activity,
possibly full intercourse, was that it was
something that he had not wanted to occur and that it caused him to swear and to
be cross
which in turn caused the complainant to be immediately and genuinely
ashamed and upset. [Counsel] submitted to you that at that
point she realised
that she had strayed well outside her personal, cultural and religious
boundaries. She realised at that moment
the consequences of what she had
allowed to happen in relation to her religious beliefs, in relation to her
husband; that she realised
then that she had not done enough to make apparent to
the accused any reluctance she may have had in relation to what she had allowed
to occur. The defence case is that it is a reasonable possibility that the
complainant was consenting. That, [counsel] submitted
to you in his closing
address, is the central question: is there a reasonable possibility that the
complainant consented or that
the accused believed on reasonable grounds that
she was consenting? If there is such a reasonable possibility on the evidence
then
the accused should be acquitted.
[41] The defence case is that the accused always believed that [the
complainant] was consenting and that this is a case involving
a woman who had
relaxed her strong religious and cultural beliefs. It was a consensual
incident which she later deeply regretted,
as indeed did the
accused.
[58] In our view, there was no unfairness in the way these competing
versions of events, both of which relied to some extent on
the cultural and
religious beliefs of the complainant, were placed before the jury. There is
therefore nothing in this ground of
appeal.
(e) Direction on standard of proof
[59] The Judge gave conventional directions on the burden of proof and
standard of proof, and no criticism is made of these.
Later, he gave the
conventional tripartite direction though he gave as the first possibility the
appellant’s evidence being
untruthful and unreliable, rather than the
possibility of its being truthful and reliable. Nevertheless this inversion of a
normal
order was not of any particular moment and Mr LaHood accepted that that
was so. However, the Judge then summarised in very general
terms the case for
the Crown and the case for the defence, following which he said:
It therefore boils down ladies and gentlemen to a question of who you believe. Credibility is undoubtedly the central issue, in particular the credibility, the reliability and consistency of the complainant. Remember that the accused himself does not have to prove anything, does not have to
prove his innocence. That is why it is the complainant’s evidence
which must, I suggest, be your primary focus.
[60] Mr LaHood said that this effectively directed the jury that it had a
simple choice to make between the Crown and defence
contentions and
was therefore wrong: R v Kingi CA122/05 10 August 2005 at [58] –
[60] and Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193.
[61] Mr Stanaway said that the Judge’s directions needed to be
considered in their totality, and that it was wrong to consider
the observation
recorded above in isolation from the other, clearly correct, directions which
the Judge gave to the jury. He said
in the light of those clear directions the
jury could not have been left with the impression that they had to make a simple
choice
between Crown and defence contentions. He said it was notable that the
appellant’s experienced trial counsel did not raise
the matter with the
Judge at the time, which suggests that the direction did not have the
significance which Mr LaHood attributed
to it.
[62] There is no doubt that the direction was incorrect, if it is
considered in isolation. But the proper approach is to consider
the summing up
in its entirety. When that is done, it is clear that the earlier, correct,
directions made by the Judge could have
left the jury in no doubt as to the
burden of proof.
Overall assessment
[63] We have concluded that some aspects of the trial were unsatisfactory, and we deprecate the way in which the cross-examination was conducted by the prosecutor. The issue is whether, in combination, these factors have led to a miscarriage of justice: s 385(1)(c) of the Crimes Act 1961. Having considered and weighed the aspects of the trial which have been the subject of discussion earlier in this judgment we have concluded that no such miscarriage of justice occurred in this case. Accordingly, the appeal against conviction is dismissed.
Appeal against sentence
[64] We now turn to the sentence appeal.
[65] The District Court Judge set a starting point, after
consideration of aggravating factors, of six and a half to
seven years
imprisonment. He then made allowance for the appellant’s age (58), the
fact that the appellant was a first offender,
the appellant’s previous
army service and his general good character in the past, and reached the
sentence of five and a half
years imprisonment.
[66] Mr LaHood said that the Judge had wrongly characterised certain
aspects of the case as aggravating factors, which had led
to the setting of too
high a starting point. In addition, he said that the Judge had wrongly
disregarded two High Court decisions
which were examples of cases where
considerably lower sentences had been imposed for sexual violation.
[67] The aggravating features identified by the Judge were:
(a) The use of force, against a victim of particularly small
stature;
(b) The offending occurred at the victim’s then place of residence
in
Christchurch;
(c) The appellant knew the victim was not well at the time;
(d) The appellant knew the victim was a Muslim with
significantly different religious beliefs from a great majority
of New Zealand
woman, and that she was married but was in New Zealand without her
husband;
(e) The victim was an acquaintance of the appellant’s wife; (f) There was a breach of trust involved;
(g) There was a degree of premeditation;
(h) The appellant had ejaculated onto the victim;
(i) The appellant has shown insensitivity towards the plight of the
complainant after the incident occurred.
[68] Mr LaHood took issue with a number of these. In particular, he
argued that it was not an aggravating feature that the victim
was a Muslim with
different cultural and religious beliefs to the majority of New Zealanders. We
agree. He argued that there was
no breach of trust in this situation, and we
agree that the term “breach of trust” is an inapt description of the
relationship
between the appellant and the complainant: R v G(CA139/04)
CA139/04 13 September 2004 at [27]. It could be said that the appellant
misused the friendship between his wife and the complainant,
but that is not an
aggravating factor in the same way that a breach of trust (such as where
offending occurs by a parent against
a child) is. We also accept Mr
LaHood’s submission that the fact the appellant ejaculated on the
complainant could not be
seen as an aggravating factor, as the jury’s
decision to acquit him on the assault charge arising from that event indicated
that the jury accepted that the ejaculation was unintentional.
[69] Mr LaHood was critical of the Judge for relying on two decisions of
this
Court, R v Singh CA160/02 26 November 2002 and R v Gupta
CA236/01
26 February 2002, and effectively excluding from consideration two High Court
decisions, R v Field HC ROT T021269 8 May 2003 Baragwanath J and R v
Tuaupiki HC HAM CRI 2004-019-2492 23 March 2005 Heath J.
[70] The factual backgrounds to all of these cases vary to such an extent that we do not think that any of them provide particular guidance for the present situation. As this Court said in R v Tranter CA486/03, CA36/04 14 June 2004 at [94] there is no tariff sentence for sexual violation by digital penetration. However, the Court made it clear in that case that an earlier statement of this Court in R v M [2000] 2
NZLR 60 at [9] that the cases showed sentences fixed against starting points ranging from two to five years on conviction following trial and before allowing for mitigating features was not in any way a tariff. The Court in Tranter said that a
starting point in excess of five years might well be appropriate in more
serious cases involving digital penetration.
[71] In the absence of any aggravating factors we believe that a starting
point in the present case of about four years would
have been appropriate. The
factors which can properly be characterised as aggravating factors justified an
increase in this starting
point of one year; the mitigating factors identified
by the Judge were given (properly, in our view) a credit of a similar magnitude.
Accordingly, the appropriate sentence in this case was one of four years
imprisonment. We are therefore satisfied that the sentence
imposed by the Judge
was manifestly excessive in the circumstances.
[72] We allow the appeal against sentence, quash the sentence imposed in
the District Court and substitute a sentence of four
years imprisonment on both
counts, the terms to be served
concurrently.
Solicitors:
Sladden Cochrane & Co, Wellington for Appellant
Crown Law Office, Wellington
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