R v Burgess [2007] NZCA 274 (3 July 2007)

Last Updated: 25 November 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

CA65/07 [2007] NZCA 274

THE QUEEN

v

DUANE CHARLES BRENDON PAUL BURGESS

Hearing: 25 June 2007

Court: Ellen France, Rodney Hansen and Ronald Young JJ Counsel: D C Ruth for Appellant

S B Edwards for Crown

Judgment: 3 July 2007 at 11 am

_{JUDGMENT OF THE COURT}

_{Extension of time granted but appeal dismissed.}

REASONS OF THE COURT

_{(Given by Ronald Young J)}

R V BURGESS CA CA65/07 3 July 2007

[1] The appellant was found guilty by a jury in December 2006 of detaining the complainant without her consent with intent to have sexual intercourse (s 208(b) Crimes Act 1961) and sexual violation by digital penetration of her genitalia (s 128(1)(b) Crimes Act 1961). He was acquitted on a count of demanding money with menaces (s 239(2) Crimes Act 1961). The appellant was sentenced by Judge Holderness (the trial Judge) to seven years imprisonment with a minimum period of imprisonment of three and a half years.

[2] The appellant seeks an extension of time to file the appeal maintaining:

(i) The evidence of timing of various events given at trial meant the convictions are unsafe (s 385(1)(a) Crimes Act 1961);

(ii) The failure of trial counsel to cross-examine the doctor who gave evidence resulted in a miscarriage of justice.

[3] The delay in filing the appeal was less than one month. In the circumstances, the Crown does not oppose the granting of an extension of time.

Background facts

[4] The complainant was 14 years old at the time of these events On

12 August 2005, at about 8.00 p.m., she was waiting at a bus stop near her home. The appellant walked past the complainant and went into a dairy near the bus stop. He purchased an ice-cream and returned to the bus stop where he briefly spoke to the complainant about when the next bus was due. After some remarks about her body the appellant grabbed the victim by the arm and pulled her under a nearby tree. He demanded money from her and threatened her if she refused. The appellant then put his hand down the victim’s jeans and inside her underpants and inserted a finger or fingers into her vagina. This continued for several minutes until the appellant ran off. The appellant denied the offending. He initially denied being in the area at the time but later admitted he had been in the area.

First ground of appeal

[5] The appellant submits that a careful consideration of the timing of various events reveals that “the actual window of opportunity for these incidents to have occurred is not impossible but highly improbable”. The appellant says the chronology of events including their timing is:

(i) At 8.00 p.m., the complainant left her home for the bus stop.

(ii) At 8.02 p.m. (approximately), the complainant arrived at the bus stop and was due to catch the 8.15 p.m. bus.

(iii) At 8.05 p.m. (approximately), the appellant arrived at the bus stop.

(iv) The complainant alleges the assault occurred over three to five minutes.

(v) The appellant walked from the bus stop to a tavern at which he was subsequently seen. A police officer gave evidence that walking between the bus stop and tavern would have taken approximately

12 minutes.

(vi) Security cameras (after daylight saving adjustment) identify the appellant as arriving at the tavern between 8.22 p.m. and 8.25 p.m., and leaving between 8.28 p.m. and 8.30 p.m.

(vii) The appellant boarded a bus at approximately 8.38 p.m.

[6] The appellant submits that given the complainant arrived at the bus stop at approximately 8.02 p.m., and shortly afterwards saw the appellant, there could not have been sufficient time for the appellant to purchase an ice-cream, take the complainant to a neighbouring property, sexually violate her for three to five minutes, and walk to the tavern in 12 minutes all by 8.22 p.m.

[7] We reject this analysis. Firstly, even if the evidence of timing as given by the appellant was the only reliable evidence at trial, there was time to commit the assault. On this timing there was approximately five minutes for the appellant to purchase his ice-cream and then take the complainant to the nearby tree and sexually violate her. All these events occurred within a close geographical area. The complainant’s description of the sexual assault was that it lasted only a few minutes.

[8] There was, however, other relevant evidence the jury would have been entitled to take into account relating to this timing.

(i) The complainant’s mother said the complainant left their house shortly before 8.00 p.m.

(ii) While the assault was taking place the complainant said she saw her

8.15 p.m. bus go by.

(iii) After the assault the complainant immediately ran to her home which was about two minutes away. She estimated she had been away from the house about 15 minutes.

(iv) While it took the constable 12 minutes to walk from the bus stop to the tavern, the complainant describes the appellant as running off after the assault. We consider it was open for the jury to conclude the appellant could have covered the distance considerably quicker than the 12 minutes it took the police constable to walk.

(v) The complainant did not have a watch so she could only give estimates of time.

(vi) There was no evidence the various watches and clocks used to tell the time were synchronised.

[9] If the jury accepted this evidence, which it was entitled to do, there was ample time within which the assault could have been committed. Where an appeal is based on s 385(1)(a) Crimes Act 1961, this Court must be satisfied that a jury acting

reasonably must have entertained a reasonable doubt as to the guilt of the appellant: R v Ramage [1985] 1 NZLR 392 (CA); R v McDonald CA142/04 29 July 2004. As we have illustrated, there was ample evidence in this case that there was sufficient time for these events to have occurred. The s 385 ground is therefore not made out by the appellant.

Second ground of appeal

[10] The second ground of appeal alleges the failure by trial counsel to cross-examine the doctor who examined the complainant after the assault was counsel error such that a miscarriage of justice occurred: Sungsuwan v R [2006]

1 NZLR 730 (SC). The appellant submits that given the complainant had claimed the appellant had tried to force his whole fist into her vagina, trial counsel should have questioned the doctor about whether “such an activity could occur without leaving some sign of trauma”.

[11] As to this, the complainant said in evidence:

Q. Thank you. Now in terms of how long this person had his hand down your pants is it your evidence that the whole time he had the ice-cream in the other hand.

A. Yes he did, he was eating it at the same time as he had his hands up me because he tried forcing his whole fist up my vagina.

[12] The evidence of Dr Batchelor, the medical practitioner who examined the complainant, was read to the jury. Dr Batchelor recorded that the complainant had alleged she was assaulted by digital penetration of her genital area two hours before the examination. Dr Batchelor said:

On genital and anal examination, there was no sign of recent trauma, bleeding or discharge. . . .

In my experience of examining people who have made allegations similar to this, a normal or non specific examination outcome is the most likely result. This is also backed up in studies of the subject published in peer reviewed medical journals. Specific evidence of injury is relatively unusual.

[13] Counsel submitted that if the doctor had been asked and accepted that an attempt to penetrate the complainant’s vagina with a fist could have left trauma on the complainant then the complainant’s credibility would have been affected.

[14] This ground of appeal is speculative. There is no evidence before this Court that any trauma to the complainant would have been likely in these circumstances. There is, therefore, no evidence upon which we could conclude there was counsel error, let alone a miscarriage of justice. This ground of appeal is dismissed.

[15] In the circumstances, we grant an extension of time for filing the appeal but the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington