R v Toeke CA44/06 [2006] NZCA 443 (24 August 2006)

Last Updated: 29 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

_CA44/06

THE QUEEN

v

_{MICHAEL TOEKE}

Hearing: 21 August 2006

Court: Robertson, Wild and Harrison JJ Counsel: L Cordwell for Appellant

P K Feltham for Crown

Judgment: 24 August 2006 at 11am

_{JUDGMENT OF THE COURT}

_{The appeal is allowed, the conviction is quashed and a new trial is ordered.}

REASONS OF THE COURT

_{(Given by Robertson J)}

Introduction

[1] Michael Toeke was convicted following trial before Judge Kiernan and a jury on one count of sexual violation by digital penetration. He appeals against

R V TOEKE CA CA44/06 24 August 2006

conviction on the basis that there was a miscarriage of justice because of radical error by trial counsel and because of a failure to respond in a timely way to a jury request to view again the video tape of the complainant’s evidential interview.

[2] The charge arose out of an incident which occurred during the Christmas period in 1997 or 1998 when the complainant was either six or seven years old.

[3] There is no dispute that the appellant’s and the complainant’s families were close friends and that they were together at a social gathering on the day of the alleged offence. The child had been playing on a water slide. Her allegation was that she went into the house to get a towel, the appellant was lying on a couch in the living room, he called her over, put a hand inside her swimming togs and digitally penetrated her vagina.

[4] The evidence of the child was produced from an evidential video interview which was made in December 2004 (after she had complained about the incident when she was 13 years of age) supplemented by oral evidence at trial.

[5] Mr Toeke was interviewed by the police in February 2005. He recalled the day upon which the incident allegedly occurred but strenuously denied the allegation. He said that he had been sitting on the doorstep of the house and had briefly touched or caressed the complainant on her leg as she brushed past him into the house, he saying to her as he did so something like “you’re nice and cool”, but there was nothing more sinister to it.

[6] Because of the time lapse between the alleged offending and it being reported, it is not surprising there was no other evidence of major probative significance. The jury’s task was to determine whether the Crown had proved beyond reasonable doubt the elements of digital penetration.

Failure to put the appellant’s case to the complainant and/or follow instructions

[7] When interviewed by the Police, Mr Toeke was adamant that he did not enter the house on the day in question. He said he deliberately touched the complainant on

her leg as she passed when he was outside on the deck on the doorstep. Mr Cordwell, who was not trial counsel, contends that a key element of the defence was lack of opportunity. Because of defence counsel’s failure to confront the complainant about the critical difference as to where there was contact between them (or in fact in any way to challenge her account save to suggest that nothing sinister happened at all) trial counsel committed a radical error.

[8] Ms Feltham accepted that this variant was not put in issue but she argued that it did not matter as the substantive defence was a complete denial and that in any event the complainant repeatedly denied defence counsel’s proposition that her account was a fabrication. Further, the complainant had said she had not seen Mr Toeke sitting on the deck at any time that day.

Discussion

[9] The Supreme Court in R v Sungsuwan [2006] 1 NZLR 730 made clear that for an appeal on trial counsel error to succeed it must be shown that something went wrong which led to the real risk of an unsafe verdict. In other words did what went wrong deprive the appellant of the reasonable possibility of a not guilty verdict?

[10] We cannot discount the possibility that the failure to cross-examine the complainant about the circumstances surrounding the actual incident (particularly in light of comments made by both the prosecutor in addressing and the Judge in summing up demonstrating that the issue was seen as important at the time) could have led the jury to believe that the defence was accepting that Mr Toeke had at some stage been alone in the house with the complainant. That could well have been seen as a significant retreat from what Mr Toeke had said to the Police and therefore impacted negatively on his denial.

[11] Trial counsel’s failure to put Mr Toeke’s position to the complainant was in fact used by the prosecution to strengthen its case. The Judge noted in her summing up that Ms Yelavich (for the Crown) had made a submission on this point:

When [the complainant] was cross-examined Ms Yelavich submitted to you that it was suggested that she had lied or made the whole thing up, but there

was no real challenge to the surrounding circumstances: that Mr Toeke was on the couch; that there was no-one else there, and so on. So you might accept that those circumstances were not challenged and she asked you to accept that the complainant herself was not lying about what happened and that she was not shaken during that cross-examination.

She reminded you that it wasn’t suggested to the complainant during the trial that Mr Toeke had simply touched her on the thigh, and Ms Yelavich suggested that Mr Toeke to the police officer had tried to explain events and to continue to conjure up an explanation which was something that would fit what [the complainant] had said.

[12] The complainant’s evidence was attacked by trial counsel from a number of perspectives. Credibility was a critical issue. Trial counsel never raised or advanced the appellant’s specific denial of entering the house.

[13] The onus of proof of all essential elements was always on the Crown. As in many cases of historic sexual abuse, the case depended entirely on the credibility of the complainant.

[14] In all of the circumstances, the failure to confront the complainant directly on a crucial point cannot be minimised.

[15] Counsel’s instructions had been that the appellant’s case was Mr Toeke’s version of events as given to the Police. To carry this out, there had to be challenging of the complainant on opportunity. Being alone in the house was very different than being by the doorstep on the deck with other people about.

[16] In an affidavit filed for the appeal, trial counsel accepted that his instructions were that at no time did the appellant go into the house or lie on the sofa in the lounge. He accepted that he failed to follow through this point.

[17] When these two aspects of this issue are considered in concert, we cannot be confident that because of the failure of trial counsel to adhere to instructions and to take proper and reasonable steps to give them effect, that there was not a miscarriage of justice. The appeal must be allowed, the conviction quashed and a new trial ordered.

Jury question about seeing the video

[18] After the jury had been deliberating for two hours, a message was sent indicating that the jury wanted to watch part of the complainant’s evidential video interview again. The Judge agreed they could, but the video cassette could not be found. By the time it was retrieved, the jury had had lunch and then sent a message that they had reached a unanimous verdict.

[19] There was then discourse about whether it should be shown again as the videotape had been out of the custody of the Court.

[20] The jury always had with them copies of the notes of evidence, a transcript of the complainant’s video interview and a transcript of the Police interview of Mr Toeke. Bearing in mind this material, it is difficult to see how any injustice could have arisen from the non timely response to their request.

[21] The jury had a comprehensive record of all that everybody had said at various times. The obvious conclusion when they advised of a unanimous verdict was that the one or more jurors who had initiated the request to see the video were now satisfied that they could reach a proper verdict without viewing part of the interview again.

[22] We reject this ground of appeal.

Result

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

Solicitors:

Crown Law Office, Wellington