R v Bowen [2007] NZCA 253 (21 June 2007)

Last Updated: 16 February 2014

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA468/06
CA29/07 [2007] NZCA 253

THE QUEEN

v

ROBERT JAMES BOWEN

Hearing: 14 May 2007

Court: Chambers, John Hansen and Priestley JJ Counsel: J J Corby for the Appellant

M D Downs for the Crown

Judgment: 21 June 2007 at 9.30 am

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS OF THE COURT

_{(Given by Priestley J)}

R V BOWEN CA CA468/06 21 June 2007

[1] On 17 October 2006 the jury in a trial presided over by Judge McAuslan found the appellant guilty of one charge of indecent assault on a girl aged between

12 and 16 years under the now repealed s 134(2)(a) of the Crimes Act 1961.

[2] On 24 November 2006 the Judge sentenced the appellant to 16 months imprisonment. Leave to apply for home detention was declined.

[3] The appellant in his notice of appeal challenged his conviction on the ground that the jury’s verdict was unreasonable and could not be supported having regard to the evidence. Such ground relies on s 385(1)(a) of the Crimes Act.

[4] Before us, however, Mr Corby, for the appellant, did not proceed with that ground. He raised two new grounds. Mr Downs, for the Crown, did not oppose these new issues being raised:

a) Was there a miscarriage of justice arising as a result of the jury having before it evidence relating to a count in respect of which the appellant was discharged under s 347(3) during the trial? (See infra [11]).

b) Should the jury have been shown an evidential videotaped interview of the complainant?

[5] During the course of argument, however, Mr Corby accepted that the evidence relating to the count on which the appellant was discharged was properly before the jury and did not lead to a miscarriage of justice. He also abandoned the point relating to the videotaped interview.

[6] That would have disposed of the conviction appeal but for a matter raised by the bench. We queried whether the Judge's summing up on the standard of proof was adequate. Mr Corby eagerly adopted this point and it became the sole ground of the conviction appeal.

[7] There is also an appeal against sentence. It is limited to the Judge’s refusal to grant leave to apply for home detention.

Background

[8] The indictment at the appellant’s trial contained four counts. Three counts alleged indecent assault under s 134(2)(a). The first of these specified touching the complainant’s breasts; the second kissing her breasts; and the third touching her genitals. All three counts arose out of the same incident in October 2004.

[9] The fourth count alleged, pursuant to s 117(e), a subsequent wilful attempt to pervert the course of justice. That count was the subject of a successful joinder application in August 2006 and accordingly it was tried together with the indecent assault counts.

[10] The trial took place in October 2006, just a week short of two years from the date of the alleged sexual offending. (We note in passing this seems an inordinate delay, given the age of the complainant and the requirement to prioritise trials involving alleged sexual offending against young people. We do not know the cause of the delay, however.) The Crown called seven witnesses. The evidence of two was read. No evidence was called by the appellant.

[11] At the conclusion of the Crown case the Judge discharged the appellant under s 347(3) on two of the four counts. There was no evidence in the Judge’s view of the appellant having touched (as opposed to kissed) the complainant’s breasts. In respect of the s 117(e) count, the Judge considered that a properly directed jury could not reasonably convict the appellant on the state of the evidence at that stage of the trial. The Judge relied on the authority of Parris v Attorney-General [2004] 1 NZLR

519, a decision of this Court which explained the earlier decision of R v Flyger

[2001] 2 NZLR 721. . The s 347 discharges are not at issue in this appeal.

[12] The jury acquitted the appellant on the count relating to touching the complainant’s genitals. On the count relating to kissing the complainant’s breast, the jury returned a guilty verdict, resulting in the conviction.

[13] The complainant was aged 13 at the time of the offending. She was 15 at trial.

[14] An evidential video interview with the complainant had been recorded on

6 December 2004. That interview was not, however, played to the jury. Instead, she gave evidence in open Court.

[15] The complainant was a friend of the accused’s daughter. Their respective families knew each other.

[16] The appellant and his wife were estranged. However, the appellant’s daughter would travel to his home every second or third weekend to visit him. On occasions the complainant accompanied her. On one such visit the appellant asked the complainant to rub oil on his back whilst he lay on the floor. This occurred when the appellant’s daughter was in bed.

[17] The activity which was the subject of the charges allegedly took place in October 2004, on an occasion when both the appellant's daughter and the complainant were visiting him. The two girls slept in the same bed. The complainant’s evidence was that she woke up one night to find the appellant touching her. She knew it was the appellant because of the size of his hand, his heavy breathing, and the smell of cigarette smoke.

[18] The complainant’s evidence was that the appellant had placed his hand inside her pyjama top, pulled up her bra, and began kissing her breasts. She also said he started to touch her by her vagina over her pyjamas.

[19] Clearly the central issue at trial was the complainant’s credibility and whether her evidence made the jury sure of guilt.

[20] The only evidence from the appellant’s standpoint was his videotaped police interview. Although he admitted asking the complainant to rub oil on his back on a

prior occasion, he robustly denied the October 2004 offending, describing the allegations as “crap”, “bullshit”, and “unbelievable”. The appellant did, however, consistently with the evidence of his daughter, agree that he had told his daughter to move from the bed where she and the complainant had been talking; that she had lain on his mattress in the lounge for approximately 20 minutes; that he had then told his daughter to go back to the bed; but had no exact memory of what he himself had done in the intervening 20 minutes.

Standard of proof

[21] There are a number of routine directions which a trial judge’s summing up must contain. The most important of these is a direction on the standard of proof which lies at the heart of our criminal justice system.

[22] The Judge gave such a direction in these terms:

[7] The standard of proof required, as you have heard, is proof beyond reasonable doubt. The law is the Crown must prove a charge and each ingredient of it beyond a reasonable doubt before there can be a verdict of guilty on that charge. The phrase reasonable doubt means just what it says. It means a doubt which you as the jury decide is reasonable on the facts of this particular case. ... (emphasis added)

[23] It is unhelpful and inadequate to explain the reasonable doubt standard to a jury in terms of that critical phrase meaning “just what it says”. It is a routine and essential part of a direction on the standard of proof to inform the jury that proof beyond reasonable doubt must equate with the jury being “sure” of guilt. The Judge omitted that explanation.

[24] The emphasised sentence is problematic. The Judge’s direction could have been open to the interpretation that the jury alone was the arbiter of reasonable doubt, with the issue of reasonableness being informed by “the facts of this particular case”. It is trite to observe that regardless of a case’s facts, the standard of proof is uniform across all criminal trials.

[25] The Judge mentioned the concept of being sure in a later passage of her summing up when she was summarising the Crown’s case and its reliance on the complainant being a credible or reliable witness:

[29] You are asked by the Crown to accept the complainant as a credible and reliable witness and also that of her friend. If you do you can be sure, says the Crown, that the accused’s denials can be put to one side, if you accept the complainant’s account then you can be sure, you do have proof beyond reasonable doubt in respect of both of these charges and the appropriate verdicts are guilty.

The propositions of law here are undoubtedly correct. But they are couched, not as a direction by the Judge, but as a summary of the Crown case. In most criminal trials counsel, when addressing the jury, will stress that any submissions or suggestions they may make about the law to a jury must defer to directions from the Judge.

[26] To ensure that no miscarriage of justice flowed from the Judge’s inadequate direction on the standard of proof we needed to assess whether, in the context of the trial, the jury was bereft of guidance on the meaning of “beyond reasonable doubt”, or whether instead the context of the Judge’s direction avoided the jury applying the wrong standard.

[27] We thus asked for transcripts of the Judge’s introductory remarks to the jury, the Crown’s opening address, and the closing addresses of both counsel. These were forwarded to counsel and further submissions were made.

[28] The Judge’s opening is very brief and contains nothing on the standard of proof. The Crown’s opening, however, deals adequately and correctly with the standard of proof. This would have been the jury’s first exposure to the concept.

[29] Defence counsel’s closing address makes no mention of the standard of proof. The Crown’s closing explains the concept of reasonable doubt in terms of it being the jury’s job to find the appellant not guilty if they were unsure about the evidence, but guilty if they were sure about it.

[30] Thus, both at the outset of the trial and in a the closing address before the

Judge’s summing up, the jury, through the Crown, received a correct and wholly

adequate explanation of the standard of proof and the need to be sure. The Judge herself in the first sentence of [7] of her summing up (supra [22]) by the use of the words “as you have heard” would have recalled those explanations to jurors’ minds.

[31] This leads us to the view that, despite the inadequacies of the Judge’s direction in her summing up, the jury had a clear understanding of the “beyond reasonable doubt” standard. Our view is reinforced by the observation that neither trial counsel nor counsel on appeal had detected any flaw with the Judge’s direction in its context. Thus there has, in our view, been no miscarriage.

[32] This Court emphasises that inadequate directions on the standard of proof and the use of variants appearing in bench books or in general currency in the 1990s or earlier are undesirable. Seven weeks before the trial this Court delivered its judgment in R v Wanhalla [2006] NZCA 229; (2006) 22 CRNZ 843.

[33] That judgment examined in a comprehensive way the issues surrounding jury directions on standard of proof including whether the so-called “domestic analogy” was desirable and whether references to “absolute or mathematical certainty” were required. The judgments range widely over the relevant jurisprudence and research materials.

[34] The majority (William Young P, Chambers and Robertson JJ), relying in part on the Canadian Supreme Court decision R v Lifchus [1997] 3 SCR 320, provided a model direction on the standard of proof:

[49] In those circumstances we are inclined to the view that Judges should explain the concept of proof beyond reasonable doubt in these terms (which in part are borrowed from Lifchus):

The starting point is the presumption of innocence. You must treat the accused as innocent until the Crown has proved his or her guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his or her innocence.

The Crown must prove that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met only if, at the end of the case, you are sure that the accused is guilty.

It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.

What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.

In summary, if, after careful and impartial consideration of the evidence, you are sure that the accused is guilty you must find him or her guilty. On the other hand, if you are not sure that the accused is guilty, you must find him or her not guilty.

[35] Glazebrook J ([101]-[114]) expressed doubts over an expanded direction, observing that such a direction ran the risk of diluting the vital message that to convict, jurors must be sure of guilt. Hammond J for his part considered that the majority’s proposed direction would “in the vast majority of cases” meet various concerns which he had raised.

[36] It is significant that the “summary” or conclusion in the direction favoured by the majority in Wanhalla repeats the longstanding comparison between proof beyond reasonable doubt and the jury being “sure” of guilt.

[37] We reiterate what this Court said in Wanhalla at [52]: “life is much easier if trial Judges use a single, safe and approved formula”. The problem highlighted in this appeal would have been avoided had the Judge adopted the Wanhalla direction.

Appeal against sentence

[38] The Judge’s sole reason to decline leave to apply for home detention was that the offending had taken place “... at home and for this type of offending it is just not appropriate...”.

[39] Section 97(3) of the Sentencing Act 2002 provides:

(3) The court may grant the offender leave to apply to the New Zealand

Parole Board under section 33 of the Parole Act 2002 for home detention

only if the court is satisfied that it would be appropriate to grant leave, taking into account—

(a) the nature and seriousness of the offence; and

(b) the circumstances and background of the offender; and

(c) any relevant matters in the victim impact statement in the case.

[40] We have no quarrel with the proposition that offending which has taken place in a home is a weighty and relevant factor. It is clearly encompassed in s 97(3)(a). Offending in a home location, however, should not be seen as an automatic disqualifier. The provisions of s 97(3) are straightforward. The discretion needs to be exercised on a case by case basis there being no absolute rules.

[41] Despite the absence of any express reference to the s 97(3) provisions by the Judge we do not consider she erred in the exercise of her discretion. Although the discretion could perhaps have been exercised a different way and although fuller reasons for declining leave should have been given by the Judge, we are not inclined to interfere with her discretion. For this reason, the appeal against sentence also fails.

Result

[42] The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington