R v Iona CA257/05 [2006] NZCA 407 (9 May 2006)

Last Updated: 25 January 2014

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

_1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA257/05

THE QUEEN

v

_{URIMA IONA}

Hearing: 12 April 2006

Court: Glazebrook, Williams and Ronald Young JJ Counsel: D R F Gardiner for Appellant

S C Holt for Crown

Judgment: 9 May 2006

_{JUDGMENT OF THE COURT}

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

REASONS

_{(Given by Williams J)}

Background and Issues

[1] At the conclusion of a trial in the District Court commencing on 11 April

2005 the appellant, Mr Iona, was found guilty by the jury on one count of sexually violating C by rape.

R V IONA CA CA257/05 9 May 2006

[2] On 28 June 2005 he was sentenced to seven-and-a-half years’ imprisonment.

[3] He now appeals on the basis that the verdict was unreasonable and cannot be supported having regard to the evidence and the sentence was manifestly excessive. The submissions made in support are considered later in this judgment.

Facts

[4] Mr Iona lived with his partner in Glendene, Auckland. On 27 June 2004 she was in Samoa attending a funeral. Her best friend, the complainant, had previously boarded briefly with the couple but left after witnessing damage to the property caused by Mr Iona in a violent rage.

[5] Late in the morning of 27 June 2004 the complainant went to the property to pick lemons for a sore throat and to collect her mail which was still being sent to the address. Mr Iona invited her in. She said they talked for about 15 - 20 minutes and then he grabbed her tightly, kissed her despite her protestations, picked her up and carried her to the bedroom, disrobed her and raped her, again despite her protestations and her unavailing efforts to push him away. She said that because she knew he had been violent previously, she was scared he might kill her. When he got off he went to the bathroom, obtained a towel and wiped her vagina. They put their clothes back on and, despite his invitation to stay, she left, went home, showered and waited until about 9.00pm when she picked up her cousin, made a complaint to him and was taken to the Police and medically examined.

[6] The medical examination revealed a suction bruise or “love bite” on one breast and two small circular bruises just below the waist. C claimed that the former resulted from the appellant’s kisses and the latter from him picking her up and carrying her to the bedroom. The doctor said the genital examination was “within normal limits” and referred to medical literature as a basis for her opinion that “normal genital examination is in no way indicative of whether the sexual assault has occurred or not”, a point clarified in cross-examination by defence counsel (not Mr Gardiner).

[7] Detective Wood executed a search warrant at Mr Iona’s home on 28 June at about 8:50am. After serving the appellant with a copy of the search warrant, he advised him that C had made a complaint about the sexual activity at the house the previous day. He advised Mr Iona of his rights under the New Zealand Bill of Rights Act 1990 and established he had been in New Zealand for over ten years. Following that Mr Iona said that he had told C that he was “sorry I made a mistake” referring to the sex and said “she said she would not tell anyone”.

[8] Despite the detective’s view that Mr Iona had a reasonable command of English, he thought it prudent to obtain the services of a Samoan interpreter, took Mr Iona to the Henderson Police station, located an interpreter and then embarked on a videotaped interview with each question and answer being translated. The detective had previously emphasised to the translator that the questions and answers should be translated literally and without embellishment.

[9] Mr Iona’s rights were given in non-technical, everyday language. He said he understood them. Mr Iona then related his version of events, essentially saying that because C stood next to him at one point in their conversation he tried to kiss her. She initially objected and he backed off but then said she told him that “I won’t say anything to anybody”, following which they kissed consensually, he carried her to the bedroom, there was about 10 - 15 minutes further kissing, they disrobed each other and then had consensual sex and she left after mutual promises not to disclose the incident. He asserted that the intercourse was consensual because “if she didn’t want it, she would push him away, but she didn’t”. Had she done anything along those lines, he would have refrained.

[10] Because there was further material he wished to put to the appellant, the detective conducted a further interview with Mr Iona on 15 July 2004 with the same interpreter.

First Ground of Appeal

[11] One of the submissions raised by Mr Gardiner in support of the appeal was that the Police should have realised from the outset that Mr Iona’s command of

English was limited. More should have been done to ensure Mr Iona understood his rights. Positive steps should have been taken to implement them by asking him whether he wanted a lawyer and whether he was prepared to continue to speak to Police.

[12] In support, he stressed that when Mr Iona was being given his rights in English and Samoan shortly after the second interview commenced, the interpreter said “He wants to know what a statement is”. That, said Mr Gardiner, demonstrated Mr Iona’s incomplete understanding of his rights and should be taken to reflect back on the whole of the appellant’s initial contact with the Police, his first videotaped interview and all that followed the query in the second. We will examine that point in detail later. On the second occasion there was a brief reiteration of Mr Iona’s stance in the matter, following which he exercised his right to take legal advice, and the interview concluded.

[13] As regards the brief interview at the house, Mr Gardiner submitted that immediately the Police realised Mr Iona’s shortcomings in English, an interpreter should have been obtained and the remarks made by Mr Iona at that point should have been excluded because the appellant was likely not to have understood his rights.

[14] The answer to that submission is that Mr Iona’s statement at the house occurred spontaneously, shortly after the necessary introductions and probably before his claimed disability in English then became apparent. In any event, there was no cross-examination at trial on the topic nor any objection to the evidence being given. There was nothing from Mr Iona to say that he did not understand what was said to him at the house. We note that he had after all been in New Zealand for some ten years.

[15] Mr Gardiner then submitted that, once he understood Mr Iona’s limited grasp of English, the detective should have done more than merely advise him of his rights. He said the Police behaviour was, as he put it, “conditioning” Mr Iona to comply with Police requests. That arose, he submitted, out of their arrival at his home with an “official” document - the search warrant - coupled with the authority

of the Police, and the use of an “official” car to take him to an “official” building for the interview.

[16] Mr Holt, for the Crown, did not contest that Mr Iona may have been detained by the Police following execution of the search warrant, thus triggering the rights to which s 23(1)(b) of the New Zealand Bill of Rights Act 1990 applied.

[17] It is helpful to record the comments of this Court in R v Mallinson [1993]

1 NZLR 528, 530 - 531 where the following appears :

... If the right is to be effective it must be exercisable before the legitimate interests of the person who is arrested are jeopardised. That includes not prejudicing one's legal position by words or conduct without the opportunity for legal advice.

...

To be "informed" of the right to a lawyer is to be made aware of it. The purpose is to provide a fair opportunity for the person arrested to consider and decide whether or not to exercise the right. The obligation on the arrester or other officer concerned is to communicate clearly to the person arrested that he or she has that right. No particular formula is required so long as the content of the right is brought home to the person arrested. ...

...

Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused's answers at face value. If following advice as to the right to a lawyer the accused responds affirmatively to the question whether he or she understands the position, the obvious inference is that the accused did indeed understand his or her rights. But more than a bare statement of the s 23(1)(b) right and a bare acknowledgement of understanding is likely to be required where, for example, the person arrested is intoxicated or under drugs or appears to have a mental or physical disability which could interfere with his or her comprehension of the rights.

[18] As regards persons like Mr Iona whose first language is not English, this Court said in R v Fukushima (CA128, 130, 134 and 170/04) 13 September 2004 at [71], [100]:

[71] Mr Cato noted the increasing number of foreigners now in New Zealand, many of whom have limited understanding of English. He said, in view of this, the Court should give a clear message that, in cases where there is reason to believe English is not the first language of a suspect, the police should offer the suspect access to an interpreter in the language of his or her choice before any

questioning commences. In our view, there is no call for such a generalised approach. There will be many for whom English is a second language who will have sufficient English to understand their rights without more. The matter is best left on the basis outlined in Mallinson, where the focus is on the degree of understanding of the particular accused person, and whether the Crown has proved that the person understood the substance of his or her s23(1)(b) rights.

...

[100] This again involves a consideration of R v Mallinson.

Mr Couchman’s argument was that, in view of the answer given by

Mr Fujita in the first exchange that he did not know a lawyer, his statement in the video interview room that he understood his rights

should not have been accepted at face value. We do not accept that

submission. In this case the Bill of Rights advice as given to Mr Fujita in Japanese by a qualified interpreter, and he indicated that he understood what was meant. There was none of the language difficulties which were said to have characterised the situation in relation to Mr Fukushima. Thus, in our view, there were not circumstances “calling for obvious care and further inquiry” in terms of the decision of this Court in Mallinson. Because the advice was given to Mr Fujita in his own language, it could not be said that he was a person suffering some kind of disability which would interfere with his comprehension of the rights. In our view, there is no basis for treating a person who has English as a second language as a special case, or characterising such a person as being under a disability in Mallinson terms, if rights are effectively communicated to the person.

[19] Here, when the detective first spoke with Mr Iona, he said :

“You are not obliged to say anything and anything you say may be given in evidence. You have the right to consult and instruct a lawyer without delay and in privacy and you have the right to refrain from making a statement.”

[20] That statement was made in English but the services of the interpreter were obtained before the first videotaped interview. The rights on that occasion, translated phrase by phrase, were recorded as :

“You are not obliged to say anything unless you wish to do so / but anything you do say will be recorded / on the video / and may be shown in evidence.”

He said he understood that.

[21] He was then told:

“You have the right to consult and instruct a lawyer without delay and in privacy [sic.] / and the right to refrain from making a statement.”

[22] Given Mr Iona’s assent when advised of his rights in his first language, we are of the view that there was no basis for the Police to be required to take “obvious care and further inquiry”.

[23] That is particularly the case when, at the beginning of the second videotaped interview, after the rights to a lawyer had been given and translated, there followed several inquiries from Mr Iona through the interpreter about the points at which he could obtain legal representation. That showed clearly that he understood his position. Then, when the right to refrain from making a statement was again given and the translator said “He wants to know what a statement is?”, the detective explained in simple language and received an affirmative answer when asked if Mr Iona understood his rights.

[24] We are of the view that the detective did all the law required of him on all three occasions and there is no basis for the submission that more should have been done.

[25] That is particularly the case when, on this and all the other grounds of appeal, not only was there no objection to the point at trial to the points now taken, but there was no affidavit from Mr Iona or any material, other than Mr Gardiner’s submissions, suggesting the appellant was disadvantaged during the Police interviews or in any other way as developed in submissions.

[26] That ground of appeal is dismissed.

Second ground of appeal

[27] The second ground of appeal was that the examining doctor should not have been permitted to support the view that a “normal genital examination is in no way indicative of whether the sexual assault has occurred or not” by reference to a paper in a reputable journal in the area saying that “27% of women claiming that there had been an assault showed evidence of genital injury”.

[29] In the first place, no objection was taken at the time. Indeed, trial counsel cross-examined on the point, elucidating whether lack of abnormalities gave no indication either way as to whether sexual assault had occurred and received an affirmative answer.

[30] Thirdly, the point now contested may have been of assistance to the appellant rather than the reverse since C had no genital injuries. That meant she fell into the

73% of women who claimed sexual assault but had normal examinations, a point made by the Crown in its questions.

[31] That ground of appeal is also dismissed.

Third ground of appeal

[32] As it now appears, though Mr Iona said he had permanent residence in this country, his work permit expired on 12 March 2004 and he made no application for a further work permit until 2 September 2004, nearly three months after the events with which the trial was concerned.

[33] An affidavit filed in this Court by trial counsel, not by Mr Iona, said the appellant was very concerned about his immigration status prior to the trial. It suggested those concerns may have influenced his response to Police at the interviews. However, he said that evidence on the topic was not elicited at trial because trial counsel in his experience knew such evidence is often unhelpful before a jury.

[34] Trial counsel’s affidavit therefore made it clear that not raising Mr Iona’s immigration status at the trial was a tactical decision. As such, as Mr Gardiner was constrained to accept on questioning at the hearing before us, this did not constitute an appeal point. In any event, it is very difficult to see how any concern of Mr Iona about his immigration status could have led to false admissions.

[35] That ground of appeal is accordingly also dismissed.

[36] Mr Gardiner submitted that because, on a number of occasions, C answered questions by saying “I don’t know” or “I don’t remember” the jury “acting reasonably must have entertained a reasonable doubt as to guilt”: R v Ramage [1985] 1 NZLR 392, 393.

[37] By contrast, so Mr Gardiner submitted, the appellant’s evidence was logical, credible and consistent with his Police statements and that he was not shaken in cross-examination. His evidence was translated, and, although the transcript does not expressly say so, we assume the translator was present throughout the trial.

[38] Again, there is nothing in this ground of appeal.

[39] A number of C’s “don’t know” replies were to hypothetical questions to which there was no logical answer. It is not difficult to infer that a number of those answers may have arisen through her distaste as having to relive in the witness box the events she was describing. Many of the “don’t remember” replies were to immaterial or peripheral questions concerning detail of little importance.

[40] This ground of appeal is also dismissed.

Result on conviction appeal

[41] In the end, this was a straightforward trial where the jury was required to evaluate the contrasting stories between the complainant and the appellant as to whether she had consented to intercourse or he held a reasonable belief as to her consent. It found the charge proved to the required standard. There was a clearly an available logical route to that conclusion. There is therefore no basis on which we could conclude that the jury acting reasonably “must” have entertained a reasonable doubt as to guilt.

[42] The appeal against conviction is dismissed.

[43] At sentence the trial Judge reviewed the facts, the defence, the pre-sentence report and noted that C had declined to provide a victim impact statement because she was “not happy that the offender should have access to my personal and emotional thoughts”. The Judge referred to the appropriate provisions of the Sentencing Act 2002 and the lead case on sentence for contested rape cases where both participants are adult: R v A [1994] 2 NZLR 129.

[44] That led her to adopt the starting point of eight years mandated in A.

[45] Because of the few aggravating features, the Judge reached the view that the lack of violence involved in the rape beyond that inherent in the actions of the appellant made the matter not one of the most serious of its kind.

[46] Having chosen the eight year starting point, she reduced it by six months to seven-and-a-half years because the offence was “at the lower end of the scale” and for the fact that Mr Iona was a first offender.

[47] Mr Gardiner, under questioning, was again constrained to acknowledge that an eight year starting point was standard in terms of A. However he contended that the reduction in sentence should have been of the order of 12 - 18 months given that Mr Iona was a first offender, was highly regarded in his work and personal life and because of the chance that his language difficulties may have led him to misinterpret the Police requests or the complainant’s attitude. By its verdict the jury must have rejected those latter issues.

[48] In our view, there is nothing in all of that.

[49] This is a case which, for sentencing, fell squarely within A. The eight year starting point was accordingly appropriate. While the effect of mitigating circumstances is often problematic, as is well-established personal circumstances are only accorded limited weight in rape sentencing . The trial Judge reduced the

starting sentence by six months. We are not disposed to interfere. Certainly, the resultant sentence could not be said to be manifestly excessive.

Result

[50] In the result, the appeals against both sentence and against conviction are dismissed.

Solicitors:

Crown Law Office, Wellington