R v Webb [2007] NZCA 443 (5 October 2007)

Last Updated: 31 December 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

CA299/07 [2007] NZCA 443

THE QUEEN

v

WAYNE KARL WEBB

Hearing: 29 August 2007

Court: Roberston, Baragwanath and Heath JJ Counsel: J R F Anderson for Appellant

D R La Hood for Crown

Judgment: 5 October 2007 at 4pm

_{JUDGMENT OF THE COURT}

A The appeal against conviction is allowed.

_{B The appellant’s conviction is set aside. We direct a retrial.}

REASONS OF THE COURT

_{(Given by Baragwanath J)}

R V WEBB CA CA299/07 5 October 2007

Introduction

[1] The ground of this appeal against conviction is that, in summing up at the appellant’s trial for indecent assault on a girl under 12, the Judge made comments that effectively took away the defence so as to result in a miscarriage of justice.

Context

[2] The 11 year old complainant was in a small pool at an aquatic centre in Auckland. In her evidential video interview she said that the appellant came in and out of the pool on a number of occasions and was looking at her under water. She went under the water and he poked her finger inside her anus through her swimming costume. She surfaced and saw the appellant about a metre and a half away looking at her. She waited a few seconds until he left the small pool and went to find her father. As she and her brother were going out of the centre the appellant deliberately bumped into her. When she got home she complained to her father “There was a strange man at the pool ... he poked me up the bum.” Her father described seeing a man floating unusually close to his daughter and subsequently reported her account that somebody poked her up the bottom.

[3] On 11 May 2005 the pool manager spoke to the appellant and told him there had been a complaint of inappropriate behaviour and asked for his details. The appellant gave the manager a false name and address. The appellant was interviewed on 3 November 2005. He admitted being at the pools that day but denied touching the complainant. When asked about the complainant’s allegation he said:

Well I disagree with that because I wouldn’t have done that, you know I may have, I may have done it accidentally without realising and I tell you now I don’t realise and I haven’t realised that I’d done anything like that ... if I have or if I did it would have been ... a total accident through either a swimming action or something like that. It certainly wasn’t ... a planned move or purpose or purposeful move, it wasn’t, so, and that’s all I can really say to that.

[4] At trial the complainant accepted that both contacts between her and the appellant, the touching of her bottom and bumping into her as she left the pool, were possibly accidental. The Crown did not re-examine on the point.

[5] In his closing address defence counsel relied on the concession, contending that the touching was not deliberate as the complainant conceded it could possibly have been an accident.

The summing up of Judge Moore

[6] The first 11 pages of the summing up consisted of legal directions. We have emphasised and added numbers in the passage that followed:

...You see, if you have a look at the final part of the cross-examination of the complainant – [1] you’ll see that it was very skilfully done as I am sure you noted at the time – and it was put to her “well, things happen accidentally in swimming pools” and of course she acknowledged that. [2] Then in effect she was put in a position where she had two choices. She had either to agree with counsel’s proposition that it was possible that this was an accident, or she had to get into the arguing the case situation. Her answer doesn’t bind you, it’s part of the evidence you have got to deal with. [3] But it’s important that you see it in context, and part of that context is a

13 year old youngster being questioned by somebody in a position of some standing and authority.

Sometimes people observing something happen are able, because of what they see, to say “it looked like an accident.” I mean the classic example of the collision in the street: most of you would not have much difficulty in distinguishing by what you saw between some drunken youngster barging into people deliberately and somebody who was in a bit of a dream or whose eyesight wasn’t very good just accidentally bumping into someone. There are features of both that you would see. But where something happens that is only partly perceived it does not follow that the person that it happened to is in the same situation as the jury when it comes to evaluating the case. [4] And although counsel is perfectly entitled to question her in that way – I think 30 or 40 years ago it wouldn’t have been allowed, but these days we allow it, the question of whether or not, if what happened to her is what she said happened to her, was deliberate is ultimately an issue for your decision. It’s not an issue that she decides for you.

Of course, in evaluating the matter you are entitled to take into account what she said in her evidence. That evidence was not evidence of a sort: “I saw a hand coming towards me.” It’s evidence “I was there, he was there, then I felt this, that and the other.” [5] At no stage, you might think, does she try to explain exactly how it happened in the sense, that sometimes people do, of trying to reconstruct. And that is an important factor. All of us, if we’re not careful, can be guilty of remembering something where part of what we think we remember is what we saw and part is what we worked out must have happened. It’s a real problem with people giving evidence, it’s – and I’m not saying that critically – it’s part of the way the human mind works.

The other thing that you need to keep in mind when you are evaluating the evidence of people is that we do not all think and remember in the same

way. Some of you probably think and remember largely in pictures. Certain sorts of jobs require that and you can often tell by somebody’s occupation how their mind works. You have got to have a certain sort of mind to be a good musician. You have got to have a certain sort of mind to be a good mathematician. The mechanic who has not got a picture in his mind of what the bit he’s looking at should look like, as opposed to what it does look like, is going to be a pretty slow mechanic.

[6] Similarly, lawyers tend to be drawn from the section of the community that thinks in words, because words are a lawyer’s tool. It does not necessarily follow that they would be very good mechanics because of those mind differences. So, just as you’ll find among yourselves differences in ways of remembering things, differences in emphasis, remember when you are listening to people giving evidence and evaluating afterwards what they have to say, they will be different too. Don’t try the one size fits all approach, don’t fall into the trap of thinking they must all be like you, because they won’t be.

Submissions

For appellant

[7] Mr Anderson for the appellant submitted that, in the passage marked [1], the Judge was suggesting that there was an element of legal trickery involved and so the jury should place little weight on the answers that arose from that line of questioning. He submitted that, at [2], the Judge effectively told the jury that the witness had virtually no choice but to agree with counsel’s proposition and that was reinforced by the remarks at [3]. He submitted that the suggestion that the witness had only two choices was incorrect; she could well have said that the touching, because of its nature, could not have been accidental. During cross-examination counsel asked:

Would it be fair to say that he was just looking in your direction?

The complainant responded:

I don’t know why he would be looking in my direction when I was the only one in there.

Asked whether the insertion of the appellant’s finger into her anus would have hurt her, counsel asked:

... and you would have yelled out wouldn’t you?

She replied:

Not necessarily.

Mr Anderson therefore argued that she was well able to disagree with propositions put to her by counsel.

[8] The comments at [4] were a further implicit criticism. At [6] the Judge returned to the theme of counsel advancing a line of questioning “skilfully” with the effect of tending to nullify the acknowledgement of the complainant that the touching of her could have been accidental. And the comment at [5] was a statement of support for the complainant in the course of what the jury had reason to regard as part of the directions of law.

The Crown

[9] For the Crown, Mr La Hood contended that the Judge’s comments were legitimate and logical, doing no more than to correct defence counsel’s use of ambiguous and inappropriate questions. He referred to the authority of judges to comment on the facts before them.

Analysis

[10] We are satisfied that, considered in context, the comments were made without adequate explanation that they were not legal directions and that, because they went beyond what was legitimate, the summing-up failed fairly to put the defence case.

Lack of adequate explanation

[11] The Judge gave no indication that the comments were other than part of the legal directions which preceded and followed the passages of which complaint is made. The result was that the jury may well have considered themselves bound to give effect to the remarks.

[12] The authorities cited by the Crown acknowledge the Judge’s entitlement to express his or her own views on issues of fact. See R v Honey [1973] 1 NZLR 725 at

726 - 727 (CA) in the judgment of Turner P:

Judges in this country are accustomed to indicate to juries fairly plainly what their own views may be on questions of fact which they are for the moment discussing, and which they must presently leave to the jury for resolution. Juries are often greatly assisted by such comments, and indeed in our experience have come to look for them in suitable cases as part of the assistance which an experienced Judge can give.

[13] But it must be made clear that the jury remains the sole arbiter of fact:

R v Hall [1987] 1 NZLR 616 at 625 (CA). In R v Keremete CA247/03 23 October

2003 the law was stated as follows:

[18] ... A judge’s summing up must identify the fundamental facts in issue, be balanced in its treatment of opposing contentions with respect to those facts, and leave the jury in no doubt that the facts are for them and not for the judge. ...

[19] ... Any comment on the facts should be made in suitable terms without use of emotive terms or phrases which could lead to a perception of injustice. But provided the issues are fairly presented, the comment may be in strong terms: R v Daly (1989) 4 CRNZ 628 (CA). Inevitably these are ultimately matters of degree and judgment.

[14] In R v Afele CA330/02 10 December 2002 this Court stated:

[23] It is not of course the law that the requirement of balance in a summing up prevents Judges from indicating their views on the evidence the jury has heard. The balance the law requires of a trial Judge is achieved, not by presenting the respective cases so as to achieve an artificial balance in their apparent strength, but through meeting the fundamental requirement of making the jury aware of its responsibility to form its own view of the evidence and not to accept any expression of the Judge’s views as in any respect binding on them.

More was said than was legitimate; and the defence was not clearly put

[15] In this case, while there were grounds for suspicion, there was also room for a possible verdict of acquittal on the grounds of accident. It was the Judge’s task to ensure that the competing cases were put fairly before them. Provided that was done, the Judge was able to express his own opinion on the issues lying within the jury’s sphere. But it was essential that the nature of the defence case be clearly put.

For a judge to intersperse comment in the course of stating the defence case runs the risk of failing to put it properly.

[16] The comments at [1] – [4] and [6] tended to demean the defence case. The comment at [5] supported the evidence of the complainant. We are satisfied that the result was to undermine the defence case rather than to put it clearly before the jury.

[17] It follows that the appellant has not had a fair trial.

Result

[18] We accordingly allow the appeal against conviction and direct a retrial. The appellant having served his sentence it will be for the Crown to determine whether such retrial should take place.

Solicitors:

Crown Law Office, Wellington