R v Ravula CA474/07 [2008] NZCA 23 (25 February 2008)

Last Updated: 26 November 2014

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR PARTICULARS IDENTIFYING COMPLAINANT AND/OR APPELLANT UNTIL TRIAL. NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION

_{IN LAW REPORT OR LAW DIGEST PERMITTED.}

IN THE COURT OF APPEAL OF NEW ZEALAND

CA474/07 [2008] NZCA 23

THE QUEEN

v

WILLIAM CAJI RAVULA

Hearing: 18 February 2008

Court: Robertson, Randerson and Ronald Young JJ Counsel: K H Maxwell and R J McCausland for Appellant

J M Jelas for Respondent

Judgment: 25 February 2008 at 2.30 pm

_{JUDGMENT OF THE COURT}

1. Leave is granted to adduce the affidavit of the complainant as new evidence.

_{B The convictions for burglary and indecent assault are quashed.}

R V RAVULA CA CA474/07 25 February 2008

C A retrial is ordered.

D Order prohibiting publication of names, addresses or particulars identifying complainant and/or appellant.

E Order prohibiting publication of the judgment or the reasons therefore in news media or on the internet or other publicly accessible database until final disposition of trial. Publication in law report or law digest

_permitted.

REASONS OF THE COURT

_{(Given by Ronald Young J)}

Introduction

[1] The appellant contends that an affidavit from the complainant contains fresh cogent and credible evidence such that, if available at his trial, may have resulted in the jury reaching different verdicts. Thus, the appellant says, his convictions for burglary and indecent assault of the complainant in August 2007 have resulted in a miscarriage of justice. In these most unusual circumstances, and without serious opposition, we are satisfied that in the interests of justice the new evidence should be admitted.

Crown case

[2] The Crown case was that the appellant entered the complainant’s bedroom at her home in Onehunga, removed his clothing and touched her foot. She then awoke and saw him. She demanded that he leave. He then dressed, and left. The complainant phoned the police who arrived shortly afterwards with a tracker dog. Meanwhile, a short distance from the complainant’s house, the appellant was

stopped by the police. The dog tracked from the gate of the complainant’s house to about 40 to 50 metres away from the appellant, when the dog was distracted by another scent.

[3] The Crown case was based on the presence of the appellant in the area; his demeanour when stopped by the police (he was said to be nervous and sweating); the evidence about the tracker dog; and green fibres found on the carpet near the complainant’s bed which, upon scientific examination, supported the proposition that they came from green shorts worn by the appellant. Finally, the Crown case was based on the complainant’s description of the offender, which matched the appellant’s description in a number of ways. The Crown, however, did not claim that the complainant could positively identify the appellant.

Complainant’s evidence

[4] In her evidence at trial, the complainant said she had a reasonably good look at the intruder. She described him as of a “slim build, athletic looking, brown skin . . . ”. She said he had short, dark, curly hair, neither sideburns nor a moustache or beard and that he had brown skin and was not Pakeha. As to his physique, the complainant said she noticed other peoples’ bodies and, “I thought he was a runner or someone off the local rugby team but not bulky, but fit looking”. The complainant said the intruder wore trousers and not jeans, rubber jandals and a shirt with a collar.

[5] In cross-examination, the complainant was shown a full-length photograph of the appellant, naked from the waist up, taken shortly after his apprehension by the police. Counsel in cross-examination pointed out that the appellant had a tattoo on his right arm, which the complainant accepted she had not seen. The complainant said that the photograph she was shown looked like the intruder but that she was “a little concerned” as to whether they had the correct person. When it was put to her that the appellant was not the intruder she said, “I think this is the person”. In re-examination she was asked how the torso in the photograph compared with the body of the intruder. The complainant’s evidence reveals that she was in some doubt

about the comparison. She concluded that the two torsos were possibly the same person although, in the photograph, the appellant did not seem to be as tall as she recollected the intruder to have been.

[6] The complainant was asked if she could give a percentage comparing the appellant’s photograph with the intruder. The complainant said:

RE-EXAMINATION CONTINUES: MR WIMSETT

Q. Can we divide it first into physique?

A. At the moment I’m putting that as a very likely the same person. Q. As a percentage?

A. 50 to 80.

Q. Can you be more specific?

A. No, harder than I thought. The photos are back to front, aren’t they?

Or they’re not because when you look at something like this you look at (interrupted)

THE COURT:

17. Well I think it’s fair to say you’re not prepared to look at that and say I’m one hundred percent sure that’s the man?

A. (inaudible 4.02.00) why not, I suppose that’s how my brain works.

Those two views aren’t the views I recall, for a start, so I’m like dependent on this first view really, I would say which side is that. If

you look at a photo is that what you see or is that the inverse image

of it, that’s what I’m asking.

RE-EXAMINATION CONTINUES: MR WIMSETT

17. I’ll just ask you to make a final comment on the comparisons and we’ll leave it at that.

A. 60 percent because I’m conservative.

THE COURT:

Q. 60 percent? A. Yep.

^{Complainant’s affidavit}

[7] The complainant in her affidavit says she wishes to correct the evidence she gave which she believes convicted an innocent man. She says that her evidence in Court was inaccurate and she is concerned that the appellant is not the guilty party. The complainant says this “change” occurred when she was shown the photograph of the appellant at trial. She said she then had serious misgivings about whether the photograph of the appellant matched the intruder. The complainant said her misgivings arose because she had a good look at the body of the person who had entered her house that night and, “it was someone with a flat muscular stomach”. She thought the photograph of the appellant showed a person with a protruding stomach. She said when the Judge and Crown counsel asked her to compare the appellant’s and the intruder’s torsos she became confused and chose 60 percent as a way of expressing a serious doubt, but without making herself look foolish. She now says the comparison is less than 50 percent.

Discussion

[8] Without the complainant’s evidence relating to the offender, we do not consider there was sufficient evidence for this case to have gone to the jury. The tracker dog evidence was of limited evidential value. The track was not from the complainant’s house but from her front gate. While it went towards the appellant’s position, it stopped 40 to 50 metres short of him. The appellant lived in the area and said he had walked past the complainant’s house immediately before his apprehension.

[9] The appellant was described as nervous and sweating. Again, without context, this evidence is equivocal. Finally, there is the ESR “green fibre” evidence. This did not conclusively establish that the fibre was from the complainant’s clothing, but it did support the proposition that it was. This was clearly the strongest item of circumstantial evidence against the appellant.

[10] This circumstantial evidence in total, however, was insufficient to establish the appellant’s guilt. It created suspicion, but little more, without the complainant’s evidence relating to the intruder.

[11] Given that conclusion, it is necessary to consider whether the complainant’s affidavit creates a sufficient shadow over her evidence such that we are satisfied a miscarriage of justice has occurred with the appellant’s convictions.

[12] There is reason to be concerned about the complainant’s credibility and some of the claims in her affidavit. Much of what the complainant mentions in her affidavit is essentially a repeat of her evidence. The jury was aware that she could not definitely identify the appellant as the intruder, that her description of the offender’s clothing was different to the clothing worn by the appellant when stopped by the police, and that she had not seen a tattoo on the intruder’s arm. Much of her affidavit repeats these weaknesses in her evidence.

[13] The complainant’s explanation as to why she said she was 60 percent sure the appellant was the offender, when she claimed in her affidavit that the true figure was much less than 50 percent, is difficult to follow. The complainant’s response to cross-examination showed she was a witness well able to stand up for herself. The claim that she was overcome by the presentation of the photograph to her and therefore mentioned the figure of 60 percent so she would not look foolish, does not match the confidence with which she gave her evidence at trial.

[14] However, we accept her affidavit contains a significant change in her identification evidence. She now says her evidence was inaccurate and gave an impression to the jury, which was wrong. In contrast to her evidence that it was very likely the intruder and the appellant were the same person she now says she was mistaken about that. It seems probable that if the jury had heard what the complainant now says about her identification evidence, it would have influenced their deliberations and may well have influenced their verdict. Given that conclusion, we are satisfied that to leave the appellant convicted of these offences in these circumstances would be wrong. We are satisfied that a miscarriage of justice has occurred.

^Result

[15] The convictions for burglary and indecent assault should, therefore, be quashed. In the circumstances, the proper course is for us to order a new trial.

Solicitors:

Crown Law Office, Wellington