R v Hayman CA478/05 [2006] NZCA 422 (23 June 2006)

Last Updated: 26 January 2014

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA478/05

THE QUEEN

v

RAELYN DARYL HAYMAN

Hearing: 9 May 2006

Court: William Young P, Hammond and Robertson JJ Counsel: P J Mooney for Appellant

E M Thomas for Crown

Judgment: 23 June 2006

_{JUDGMENT OF THE COURT}

_{The appeal is allowed. The convictions are quashed and a new trial is ordered.}

REASONS

_{(Given by Robertson J)}

R V RAELYN DARYL HAYMAN CA CA478/05 23 June 2006

[1] In August 2005 the appellant was convicted by a jury in the District Court at Rotorua on two charges. The first was that on 4 April 2003 at Putaruru she sexually violated a teenager, who was then 13, by unlawful sexual connection by digital penetration contrary to s 128(1)(b) of the Crimes Act 1961. Secondly, that on the same date she had indecently assaulted the same person.

[2] There had been an earlier trial in April 2005 at which the jury was unable to reach unanimous verdicts.

[3] On 17 November 2005 Ms Hayman was sentenced to three years’ imprisonment on the first charge and one years’ imprisonment on the second, with the terms to be served concurrently.

[4] Ms Hayman appealed against both conviction and sentence on a variety of grounds. By the time of hearing, however, the appeal against sentence had been abandoned and the appeal against conviction was advanced on the basis that there had been a miscarriage of justice because of a failure properly to direct the jury as to various aspects of the onus of proof.

Factual background

[5] On 4 April 2003 the complainant (who was a close friend of the appellant’s daughter) stayed the night at the appellant’s home. During the evening the appellant gave both girls cannabis to smoke and whisky to drink. The complainant was seriously affected and began vomiting. She was put to bed. The complainant’s evidence was that the appellant had gone into the bedroom, laid down beside her, undone her top, rubbed her breasts and made indecent suggestions to her. This constituted the second count.

[6] Later, the appellant again went into room where the complainant was in bed, undid the complainant’s pants, touched her genital area and penetrated her vagina with her fingers. This constituted the first count of the indictment.

[7] When the appellant was interviewed by the police six months’ later, she admitted the girl was at her home, that she was sick and put to bed, but denied any inappropriate touching or sexual contact. She repeated these denials in evidence in Court.

[8] The crux of the trial was accordingly whether the sexual activities had ever occurred. The appellant, in denying they had, suggested that the complainant had dreamed the events.

The period of jury deliberation

[9] The jury retired to consider its verdict shortly before lunch.

[10] After three and a half hours, the Judge initiated an inquiry of the jury as to what progress they were making. In a report to this Court under r 17 of the Court of Appeal (Criminal) Rules 2001, the Judge has indicated that he was anxious at the length of retirement in what was effectively a single issue matter especially as it was a retrial.

[11] He received advice from the jury. The actual communication is not available, but from the r 17 report we know that the Judge recorded in his trial notebook:

We are struggling – been Count 1 – 2 and back: problem is with the level of proof.

Discuss with counsel – agree.

At 5 will ask Barry [the Court Taker] to make further enquiry – offer give further direction on reas. doubt and will give American version in “book”. Leave further half hour for an enquiry.

The “half hour” is a reference to the fact that by then the jury would have been in retirement for four hours.

[12] The trial record shows before further action was taken by the Judge there was an indication that the jury had reached verdicts. These were delivered without any further direction being provided to the jury.

[13] Mr Mooney argued that the District Court Judge failed to direct the jury properly on the onus of proof in three respects:

(a) in the circumstances of the case he ought to have stressed to the jury that there was no onus on the defence to prove that the complainant was dreaming;

(b) he ought to have given a direction in terms of R v T [1998] 2 NZLR

257; and,

(c) when the jury indicated that they were having difficulty with ‘the level of proof’ he should have provided fresh directions to the jury as to the onus and standard of proof without any delay.

[14] In respect of the first issue, the appellant submits that the Judge should have expressly stated that there was no onus on Ms Hayman to prove that the complainant was dreaming. Counsel accepted that the Judge gave the appropriate general direction regarding the burden of proof and the standard tripartite direction about the effect of an accused giving evidence, but submitted that this was insufficient in the circumstances. He argued that the case required the Judge to specifically tell the jury that there was no onus on the defence to prove the assertion of her dreaming which it had introduced as part of its case. He submitted that an analogy should be drawn with those cases involving intoxication, self-defence, duress and automatism where a jury should be informed that there is no onus on the defence to prove such an assertion but that it was for the Crown to exclude it as a reasonable possibility.

[15] Mr Mooney argued that the statements made by the Judge in summing up referring to credibility did not address this issue. In any event, the use of the word “credibility” he submitted can be misleading in a situation where a complainant honestly believes what they are saying and so demeanour or reaction will be unhelpful.

[16] Secondly Mr Mooney submitted that a direction in terms of R v T was required because the prosecution was seeking to bolster the complainant’s credibility by reference to the absence of a motive to lie. Consequently the Judge had to make it clear that, regardless of the absence of a motive, the onus of proof remained on the Crown throughout. Although there had been no cross-examination on the point, this aspect was mentioned by the Crown in its address to the jury and referred to by the Judge in his summing up.

[17] Finally, the appellant submitted that the Judge should have immediately given fresh directions to the jury when, after deliberating for three and a half hours, they sent a note stating they were having trouble with the “level of proof”.

[18] Counsel argued that, as this was a retrial of a case in which there was effectively a sole issue, as soon as the jury indicated difficulty with the “level of proof” there was an imperative to direct them further on the point. This was necessary to ensure that, notwithstanding all that had been said in the initial directions, the jury were not falling into error as to the onus and standard of proof, for example by deciding which explanation they preferred rather than whether the consistent denial of wrongful conduct could reasonably be true.

The Crown’s response

[19] Mr Thomas submitted that, looking at the summing up as a whole, the jury could not have been left in any doubt regarding the competing contentions and that the onus was on the Crown to satisfy the jury that the complainant was not honestly mistaken.

[20] He argued there was no authority for the proposition that any matter raised affirmatively by the defence necessarily requires a specific direction that the onus of proof remains with the Crown. Mr Thomas submitted that the authorities advanced by the appellant were only relevant when a legal defence was in issue.

[21] It was further submitted that there was no need for a direction in terms of

R v T, but even if there was it did not result in a miscarriage of justice. Counsel

noted in particular the decision of this Court in R v Tuiloma CA222/99 8 December

1999 which held that the important question was whether the jury were adequately directed that the onus of proving the essential elements of charges lay upon the Crown.

[22] Finally Mr Thomas submitted that the communication from the jury did not require further action by the Judge and that doing nothing until the jury had been deliberating for four hours was not inappropriate.

Discussion

i) No onus on the accused to establish that the complainant was dreaming

[23] There was no contest (and could not have been) that the onus of proving the essential elements of each count remained on the Crown throughout this trial and there was no burden on the appellant to prove the complainant had been dreaming.

[24] Any summing up must be read as a whole. The Judge commenced the summing up (after providing an overview as to what would be included) by saying:

To adopt a simplistic approach to this case would be wrong in the sense that if you just said to yourselves “Which story do I believe” and counsel have properly addressed you on the basis that it is a credibility issue of witnesses and in particular, the [complainant] and the accused, but your task is not quite as simple as that. You have to say to yourselves “Am I satisfied beyond reasonable doubt, have the Crown proven that these offences occurred” and that is quite different from which story am I going to believe, which is true? You have to be satisfied before you can convict the accused, beyond reasonable doubt which is you have to be sure that the Crown have proved either one or both of these offences.

[25] We do not accept Mr Mooney’s submission that R v Kamipeli [1975]

2 NZLR 610 (CA), R v Robinson (1987) 2 CRNZ 632 (CA), Salcana v R [1967] NZCA 4; [1967] NZLR 421 (CA) and R v Cottle [1958] NZLR 999 (CA) are authority for the proposition that a Judge must specifically direct the jury that there is no onus on the accused to prove any assertion offered by the defence. Kamipeli and Salcana in particular make it clear that the Court should not instruct a jury to ignore evidence raised by an accused but that the evidence should be considered by a jury in

assessing whether the Crown has established all the elements of the offence beyond reasonable doubt.

[26] In the instant case the Judge properly instructed the jury on the burden which was on the Crown and fully summarised all the appellant’s contentions, so there was no breach of that proposition.

[27] Robinson was a special case which dealt with the specific issue of self- defence. The Court treated statutory “justifications” as a special case requiring special directions and it does not apply here.

[28] In the present case, the question was simply whether the appellant’s consistent denial of any wrongful conduct could reasonably be true. If so, then the Crown had not fulfilled its onus. Taken as a whole the summing up must be viewed as achieving this outcome. There was nothing which could have been interpreted as a suggestion that Ms Hayman had to establish her suggestion that the complainant had been dreaming. It was simply a factor which the jury had to take into account in assessing whether the onus on the Crown had been satisfied. This was properly and fairly left to the jury.

ii) A direction in terms of R v T

[29] Similarly we do not see the concerns expressed by this Court in R v T as having application. In that case it was held that the prosecution is entitled to cross- examine an accused and make remarks in closing as to whether the accused knew of any facts that would explain why the complainant would make false allegations. The Court noted that a direction from the Judge would be required where comments and questions relating to an absence of a motive to lie interfered with the principle that the Crown had the burden of proving all of the elements of the offence beyond reasonable doubt.

[30] Such a situation did not arise in this case because the appellant accepted that the complainant may well have believed the truth of what she was saying but for some reason was mistaken in her recollection. There was no direct cross-

examination of the appellant about why the complainant would lie, but in closing the prosecutor raised the matter in his address and this was referred to by the Judge in summing up.

[31] Mr Mooney before us emphasised the Judge’s comment at [18] when, having reviewed conflicting evidence, he said “who do you believe?” He submitted that this equated to an equal onus being placed both on the prosecution and the defence, particularly when it was linked to the earlier reference to the issue of “why should she lie”.

[32] R v T should not be read as suggesting an invariable requirement. A direction is not required every time there is mention of any absence of motive on the part of the complainant to make a false allegation (see for example R v Adams CA 70/05

5 September 2005 at [74]). The critical issue is whether there is a risk that the jury may view the burden of proof as being shifted from the Crown. Where it is clear from the summing up, viewed as a whole, that the onus of proof rests with the Crown, as was the case here, no such direction is required.

[33] It may be that more emphasis could have been placed on this point, but when the second paragraph of the summing up as recorded above in [24] is kept in mind, we are not persuaded that any miscarriage of justice could have arisen in this aspect of the matter.

iii) Responding to the jury

[34] The final ground of appeal relating to the jury communication has given us distinct cause for concern. Mr Mooney is correct that this case was only about one issue, namely whether the appellant had acted in an inappropriate way towards the complainant who was severely incapacitated.

[35] The communication from the jury expressing trouble with “the level of proof” must have indicated possible confusion about the nature of their crucial task. It put the Judge on notice about a potential problem. The Judge not responding immediately meant that an opportunity to overcome any difficulties was foregone.

We do not overlook that the Judge’s note as recorded at [11] indicates that counsel agreed to his proposed course of action in delaying any further directions. Apportioning responsibility is not the test. From the beginning of the summing up the Judge had been alert to the possibility that the jury would fall into error by focusing on which version of events they preferred. The communication from the jury indicated that “the level of proof” was the stumbling point. With the advantage of hindsight and the opportunity for reflection, this should have alerted everybody to the need for a reiteration of the fundamental precepts.

[36] Although not referred to by counsel, our own research reveals an unreported decision of the English Court of Appeal (Criminal Division) R v Mitchell No 95/3540/Z4 15 August 1995, which bears some similarities to the factual circumstances before us.

[37] The jury in Mitchell retired to consider its verdict at 12.58pm and at 4.21pm they were returned to Court and given a conventional majority direction. About ten minutes later the jury sent a note which read: “Interpret beyond reasonable doubt.”

[38] The Court of Appeal noted that the directions given previously had been perfectly plain and were “impeccable”. Nonetheless Russell LJ noted:

But, as the note plainly indicates, it must have been that some one or more of the jurors were troubled by this fundamental concept involving the burden and standard of proof, hence the note that was sent into court.

[39] The Recorder presiding consulted with counsel, but before any further direction could be given a verdict was returned.

[40] The Court of Appeal concluded:

All sorts of speculation could arise in this appeal as to what transpired in the jury room between the time when the note was prepared and the return of the jury to the courtroom. We must not engage in that speculation. The solution to the problem may strike different people in different ways, but at the end of it all we remind ourselves of the provisions of section 2 of the Criminal Appeal Act 1968. That indicates that, subject to the proviso, (which can have no application here) the Court of Appeal shall allow an appeal against conviction if they think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory.

[41] The formula used in our statute is different, but the effect is the same.

[42] On this topic which the English Court of Appeal described as ‘unusual’ the learned authors of Archbold state at [4-432]:

The judge should direct the jury upon the burden of proof if it is apparent from their inquiry that they have overlooked it or misunderstood it: R v Bell [1967] Crim LR 545, CA, and see also R v Rafique [1973] Crim LR 777, CA, which was applied in R v Gibson [(1983) 77 Crim App Rep 151].

...

If the jury send a note that is indicative of them having forgotten or failed to appreciate the significance of the direction of standard of proof (“in a case of one to one, what weight should we give to our feelings as to the guilt of the defendant in the absence of hard evidence”), it is incumbent on the judge to remind them in forcible terms that they are to put feelings to one side, and not merely that they are to try the case on the evidence but also that they should convict if they are sure of guilt: R v Wickramaratne [1998] Crim LR

565, CA.

[43] It matters not that the Judge in summing up properly directed the jury as to the burden of proof if the jury subsequently indicates that they may have misunderstood or be uncertain about the effect of the direction. In such circumstances the jury should be re-directed. A failure to do so runs the risk of causing a miscarriage of justice.

[44] We are left with a residual concern in the particular circumstances of this case that the convictions may not be safe. Accordingly we allow the appeal on this ground and formally order a retrial. It would be a third trial. It is a matter in the discretion of the Crown whether they offer evidence again.

Result

[45] The appeal is allowed, the conviction is quashed and a new trial is ordered.

Solicitors:

Gordon & Mooney, Stratford, for Appellant

Crown Law Office, Wellington