R v McEldowney [2007] NZCA 92 (22 March 2007)

Last Updated: 8 February 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

CA301/06 [2007] NZCA 92

THE QUEEN

v

CRAIG KEVIN MCELDOWNEY

Hearing: 7 March 2007

Court: Ellen France, John Hansen and Williams JJ Counsel: A R Laurenson for Appellant

K B F Hastie and E A Gambrill for Crown

Judgment: 22 March 2007 at 3 pm

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS OF THE COURT

_{(Given by Ellen France J)}

R V MCELDOWNEY CA CA301/06 22 March 2007

Introduction

[1] The appellant was convicted after trial on two counts of sexual violation by unlawful sexual connection and one count of sexual violation by rape. He appeals against his conviction.

[2] The appeal relates to, first, alleged irregularities in the jury’s deliberations and, second, the availability of further evidence. Two other grounds relating to the medical evidence and evidence about the complainant’s level of intoxication were not pursued.

Factual background

[3] The incidents giving rise to the charges took place on 13 January 2004. At that stage, the 15 year old complainant was visiting her sister A. The complainant made arrangements to visit two other sisters (B and C). C was in a relationship with the appellant.

[4] The complainant, her two sisters B and C, and the appellant attended a barbecue at C’s home. That address was also the home of Luke Henderson. Whilst at the barbecue, the complainant drank a substantial amount of alcohol and became heavily intoxicated.

[5] Samuel Smaller was also at the barbecue. He shared a house with his sister and the appellant. As Mr Smaller was leaving the barbecue he found the complainant passed out on the driveway and covered in vomit. Mr Smaller said in his evidence that he decided to take the complainant back to his home so put her in his car and drove home approximately 20 kilometres away.

[6] Arriving at the house, Mr Smaller went inside and woke his sister and they helped bring the complainant inside. His sister gave the complainant a shower, put her in some pyjamas and put her to sleep in the appellant’s bed. Mr Smaller and his sister both said they understood the appellant was staying the night at C’s house.

[7] The complainant said that she awoke later to find the appellant in the bed. He was lying on top of her and digitally penetrating her. The complainant said she asked him to stop but he continued. He removed her underwear and began having oral sex with her. The complainant said she was passing in and out of consciousness as she was still affected by the alcohol. When the complainant next regained consciousness, she said the appellant was having sexual intercourse with her. The complainant asked the appellant to stop but he continued.

[8] By the time the complainant woke again, the appellant was asleep. The complainant said she picked up her clothes and went to sleep on the couch. The evidence was that Mr Smaller found the complainant asleep on the couch later that morning and told her to go and sleep in his room. He then dropped her back at C’s house. The complainant travelled with her two sisters B and C to meet A and told her what had happened. A complaint was made to the police.

[9] The appellant gave evidence at trial. He said he had returned home to find the complainant asleep in his bed. She had the smell of vomit on her breath. He shook her in order to wake her up and asked her to go and sleep on the couch which she did.

Irregularity in jury deliberations

[10] The trial began on 26 June 2006 and the jury retired to deliberate at 12.42 pm on 28 June 2006. At 7.50 pm and at 8.45 pm, the jury returned with questions. At 8.00 pm and 8.50 pm respectively the jury returned to the jury room to continue deliberations.

[11] At 10.10 pm the jury returned to Court and were asked about their progress. The foreman told the trial Judge, Judge Bidois, that 11 of the jury were in agreement. Judge Bidois gave the jury the option to continue their deliberations or return in the morning. The jury retired at 10.12 pm to discuss how to proceed. At 10.20 pm, the jury returned and told the Judge they would continue deliberating.

[12] At this stage, Judge Bidois gave the jury a Papadopoulos direction in the standard form (R v Papadopoulos [1979] 1 NZLR 621 (CA); R v Accused (CA87/88) [1988] 2 NZLR 46 (CA)).

[13] After the jury retired, the door to the jury room was inadvertently left open and a heated discussion could be briefly heard. At that point, the door was closed.

[14] The jury returned about 40 minutes later, at 11.10 pm, with guilty verdicts.

[15] The appellant submits that the jury’s verdicts were unsafe. There are three grounds for this submission:

(a) The length of deliberations and the jury’s indication about their progress showed there was undue pressure on the jury to reach a verdict and the Judge ought to have discharged them.

(b) The standard Papadopoulos direction ought to have been amended. (c) The jury ought to have been polled.

[16] On the first ground, the appellant relies primarily on the length of time the jury were deliberating in the context of a trial where the sole issue was the identity of the offender. It is also suggested that, given the jury’s indication of their position, undue pressure may have been exerted on the juror who was standing out to avoid deliberations extending to the next day.

[17] As the Crown submits, this first ground would require investigation into the jury’s deliberations. It is well settled that the Court will not receive evidence from jurors purporting to disclose the course of their deliberations: R v Papadopoulos at

626. The allegations are not, in any case, the rare type of jury misconduct that would merit further inquiry.

[18] While the jury had been deliberating for a period of time the indications, via the questions asked, were of a jury working through the issues. Further, although the deliberations had extended over a period, they were not of the length involved in

cases like R v Sampson [1989] 2 NZLR 288 (CA). There the jury retired to consider their verdict at 1.09 pm and were still deliberating until 3.00 am. In Sampson at 291, Casey J observed that:

[T]he experience of this Court indicates that juries produce perfectly satisfactory verdicts after deliberating sometimes much later than 10.30 pm. Although late hours may give rise to concern in some circumstances, we cannot see how any arbitrary time can be fixed, beyond which all verdicts must be regarded as suspect.

...

In determining whether a verdict should be regarded as unsafe or unsatisfactory, we think it necessary to take an overall view of the trial, the summing up, the record of the jury’s deliberations and the character of the verdict, bearing in mind that the trial Judge is often in the best position to exercise an informed discretion about whether or not to discharge the jury from his “feel” of the case which may develop over some days’ association with them.

[19] The Court held in Sampson that there had not been a miscarriage of justice. The length of deliberations in this case was in our view not out of the ordinary given the nature of the issues. As Casey J said at 290 in Sampson: “There are many instances where juries take everything from seven to 10 hours, even in cases involving only a single issue.”

[20] It is also relevant that the trial counsel for the appellant (not counsel on the appeal) agreed to the giving of a Papadopoulos direction. There is no suggestion any submission was made that the jury should have been discharged.

[21] We see nothing in the fact Judge offered the jury the choice of an overnight stay. There was nothing untoward in that.

[22] Similarly, we do not accept the appellant’s submission that an amended Papadopoulos warning should have been given. The appellant’s argument is based on R v C (CA126/04) (2005) 21 CRNZ 657 (CA) in which this Court quashed the appellant’s convictions on the ground that the jury verdict was unsafe. In R v C, however, the jury had given the Judge a note indicating that they were not functioning properly and that there were concerns of intimidation. The Court said at

[41] there should have been a direction “about individual conscience and the importance that such should not be suborned by intimidation”.

[23] The appellant here relies on the evidence that when the door to the jury room was left open, “raised, angry voices” could be heard. Darlene Ladbrook, the appellant’s aunt, says she believes it was “a man yelling at a woman and a woman yelling back.” However, there was nothing to indicate to the Judge that anything other than robust debate was occurring. There was nothing suggesting intimidation or coercion or matters of that nature. As this Court said in R v Accused (CA303/96) (1996) 14 CRNZ 516 at 522 (CA) :

Many people will experience feelings of stress and of having been pushed into accepting a position in situations where a group decision has to be made in unfamiliar circumstances with some urgency and when the participants are strangers to one another. Such feelings are not unnatural in a juror but do not call into question the result of a jury’s deliberations. It is well recognised that jury service is not a pleasant nor an easy task.

[24] Absent the “clearest indications of improper pressure on a jury”, the appellant’s argument “simply invites the Court to speculate”: R (349/05) v R CA349/05 4 May 2006 at [35].

[25] Finally, we agree with the Crown that there was no need to poll the jury. No poll was sought and there is nothing to suggest any of the jurors dissented at the time the verdict was given.

New evidence

[26] The relevant principles for the admissibility of fresh evidence on appeal were summarised as follows in R v Bain [2004] 1 NZLR 638 at [26] (CA):

It can therefore be seen that there are in substance three screens or controls which the Court applies in a further evidence case. The first is concerned with freshness, the second with credibility, and the third with whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial. If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate Court but for a new jury at a second trial which the Court will ordinarily order, unless for some good reason, pertaining to the nature of the new

evidence or otherwise, the Court in its discretion decides not to order a new trial.

[27] The new evidence advanced by the appellant is that of Luke Henderson by way of affidavit. He says that, at the barbecue, Mr Smaller was plying the complainant with alcohol. He also says that Mr Smaller made a comment on more than one occasion about the size of the complainant’s breasts. Mr Henderson’s evidence is that “from what he saw”, Mr Smaller “appeared to have some sexual intent toward” the complainant. Mr Henderson says he was never contacted before the trial about giving evidence and he did not know that the trial was proceeding.

[28] The appellant says this evidence is fresh because of the efforts made by the appellant’s trial counsel to find witnesses. For example B and C, who live some distance away, gave evidence for the defence. It appears the appellant did not tell his trial counsel that Mr Henderson was at the party.

[29] Although the Crown proceeded on the basis the evidence was fresh in terms of Bain, we take a different view. In Bain, this Court said at [22] that: “Ordinarily if the evidence could, with reasonable diligence have been called at the trial, it will not qualify as sufficiently fresh.” There is nothing to suggest that Mr Henderson was not able to be contacted, even by telephone, prior to trial. It does appear that Mr Henderson was not interviewed by the police so there would not have been any disclosure of any statement. The barbecue was however at Mr Henderson’s house and the appellant gave evidence at trial that Mr Henderson was one of the ten or twelve people at the barbecue. With reasonable diligence, Mr Henderson’s evidence could have been called at trial.

[30] In any event, even if the evidence is both fresh and credible, we accept the

Crown submission that it does not add to the pool of evidence.

[31] The identity of the offender was the primary focus at trial. The complainant said it was the appellant because:

(a) She recognised his voice.

(b) She saw him.

(c) She saw two distinctive tattoos.

[32] The appellant accepted he had spoken briefly to the complainant earlier in the evening and admitted he had tattoos as described by the complainant. The complainant did not describe the offender as having any facial hair. Mr Smaller said he had a full beard at the time.

[33] Mr Smaller was asked in cross-examination whether he had had any “intimate relationship” with the complainant and he denied that. The defence case was that the jury could not discount the possibility of Mr Smaller or a complete stranger being responsible.

[34] Against this background, the appellant says that with Mr Henderson’s evidence, counsel would have been able to press much further in the questioning of Mr Smaller. This evidence, the appellant argues, would have provided a good faith and factual basis to impeach Mr Smaller’s character.

[35] The reality is though that, with one exception, the material in Mr Henderson’s affidavit was before the jury. Mr Smaller in his evidence said he had spent some time with the complainant and provided her with alcohol. He gave evidence about taking her back to his house and putting her to sleep and the jury knew he had time alone with her. His account was corroborated by his sister. Mr Smaller did not deny hugging the complainant the next day.

[36] The appellant in his evidence described Mr Smaller as the person largely “looking after” the complainant. The complainant’s sister C similarly described Mr Smaller as one of two men (not the appellant) who were encouraging the complainant to drink. The complainant’s other sister, B, described Mr Smaller as cuddling the complainant the following morning.

[37] In summing up, the Judge said that in order to be satisfied to the requisite standard, the Crown had to show the jury that the appellant was the offender. To do

so, the Judge said, the Crown “must eliminate Sam Smaller and any complete stranger or intruder”. The Judge explained that to eliminate Mr Smaller, the Crown relied on his denial. The Judge also made it clear that the defence had no obligation to prove it was Mr Smaller or anyone else.

[38] Finally, in the course of very careful directions about the circumstances in which the identification by the complainant was made the Judge said:

You then need to add into the mix the presence of Sam Smaller, although he denied any touching of her. His encouragement to get her to drink, his offer to take her home as she had been deserted by her sisters and the hug that they had when he dropped her off.

[39] The only material that was not otherwise before the jury is the comment Mr Henderson says Mr Smaller made about the complainant’s breasts. In the context of the trial, even if the evidence is fresh, we do not consider that the fact Mr Smaller commented on the complainant’s breasts was evidence that might reasonably have led to a finding of not guilty if called at the trial. At best, it was evidence from someone not affected by the obvious family dynamics involved in the evidence of B and C but it would not have added in any material way to the picture the jury already had.

Result

[40] For these reasons, the appeal is dismissed.

Solicitors:

Govett Quilliam, New Plymouth for Appellant

Crown Law Office, Wellington