The Queen v Noble [2009] NZCA 507 (23 October 2009)

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The Queen v Noble [2009] NZCA 507 (23 October 2009)

Last Updated: 27 October 2009

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA633/2008

[2009] NZCA 507

THE QUEEN

v

DEAN NOBLE

Hearing: 23 September 2009

Court: O'Regan, Venning and Winkelmann JJ

Counsel: B J Hart and H D M Lawry for Appellant
M D Downs for Crown

Judgment: 23 October 2009 at 11.30 am

JUDGMENT OF THE COURT

A The appeal against sentence is dismissed.

B The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] Following trial in the District Court at Christchurch before Judge Crosbie and a jury the appellant was convicted on three counts of sexual violation and one of assault. Because of the nature of the offending and the appellant’s previous record the sentencing was transferred to the High Court for preventive detention to be considered. Chisholm J imposed a sentence of 11 years’ imprisonment with a minimum non-parole period of seven years.
[2] The appellant lodged appeals against both conviction and sentence. During the course of the hearing counsel confirmed that the appellant no longer pursued the appeal in relation to sentence. We formally dismiss it.

Background

[3] In March 2005 the appellant was sentenced to imprisonment for six years 10 months on a number of serious charges. While serving that sentence, and particularly between 18 April and 15 May 2005, the appellant shared a cell with the complainant at Paparoa Prison. One night after lockdown the appellant held the complainant down, struck him on the head and then raped him anally. The next day the appellant asked to see the unit manager about a banking matter. While with the manager he also asked to be moved but, as he refused to give a reason, his request was declined. On a later occasion the appellant forced the complainant to perform oral sex on him as well as anally raping him again. The appellant also assaulted the complainant following a dispute about some books.

[4] The complainant was subsequently shifted from the appellant’s cell. Just prior to his release from prison in 2007 he reported the offending to the police. The appellant was spoken to. He denied the incidents occurred and said the complainant had made the allegations up.
[5] The appellant did not give evidence at trial. He relied upon the statement he had made to the police.

Grounds of appeal

[6] The appellant raises the following grounds in support of his appeal against conviction:

(a) the Judge’s directions to the jury as to the use of prior inconsistent statements was incorrect;

(b) trial counsel, Mr Ruth failed to call two prison officers, Messrs French and Austin as witnesses as instructed by the appellant;

(c) Mr Ruth breached the obligations he owed the appellant arising from the fact he had previously acted for the complainant;

(d) Mr Ruth placed undue pressure on the appellant to dissuade him from giving evidence;

(e) there is fresh evidence from two new witnesses, Darrell Moses and Troy Wells, to the effect that the complainant had made up the allegations against the appellant.

The evidence

[7] The appellant has sworn two affidavits in support of his appeal. The prison officers, Messrs French and Austin have sworn affidavits, as have Mr Moses and Mr Wells. The appellant has waived privilege. Mr Ruth and his junior who assisted him at trial, Mr Cook, have sworn affidavits in response. All deponents, apart from Mr Austin, were called for cross-examination.

The Judge’s direction

[8] In summing up to the jury the Judge identified the complainant had been challenged in cross-examination with previous statements that were inconsistent with his evidence. The Judge then went on to say:

[28] Whether any demonstrated inconsistencies affect your view of the witnesses’ credibility or reliability is entirely a matter for you to assess. In either case, if a witness acknowledged that something said in an earlier statement is true, you can consider that as part of the evidence. But unless they are clearly acknowledged to be true, contents of previous statements are not evidence which you should consider. In other words, the fact that a witness has previously said something inconsistent with the evidence he gives at trial may lead you to doubt or disbelieve that evidence. The contents of the statement which the witness now says are incorrect are not evidence of the truth of that different version of events.

[9] Mr Lawry submitted the direction to the jury was wrong and confused two quite different concepts: first, that if a witness does not accept a proposition, it is not evidence; and second, the use to which prior inconsistent statements could be put. Mr Lawry submitted the direction would have confused the jury leading to a miscarriage of justice.
[10] The Judge’s direction (quoted above at [8]) was in error. The form used by the Judge is no longer a proper direction in light of the definition of a hearsay statement in s 4 of the Evidence Act 2006 and this Court’s decision of R v Morgan [2008] NZCA 537 at [31] to the effect that a previous inconsistent statement will generally be admissible to prove the truth of its contents.
[11] However, while the Judge’s error was an irregularity it was not disadvantageous to the appellant. The cross-examination challenged the complainant’s credibility but did not reveal an important point that depended on the jury accepting the prior inconsistent statement as proof of the truth of its contents. The error could not, either on its own or taken in conjunction with any other of the alleged errors, have affected the result of the trial and led to a miscarriage: R v Matenga [2009] 3 NZLR 145 at [30].

Counsel error – failing to call the prison officers

[12] The complainant said that before he was violated the appellant punched him a few times, on the first occasion in the back of the head and on the second occasion to the side of the face. On both occasions he was forcibly held down.
[13] The appellant says that the two prison officers could give evidence to confirm that they had not observed any injuries on the complainant and the complainant had not asked them for protection or for a change of cell. He now says that that he instructed Mr Ruth to call the officers.
[14] For the Crown, Mr Downs accepted that if the appellant had given express directions to Mr Ruth to call the witnesses and Mr Ruth had failed to do so then that would be a breach of clear instructions amounting to a miscarriage of justice in this case.
[15] The appellant’s evidence as to his instructions to Mr Ruth about the issue is not consistent. In his first affidavit he said that approximately five months prior to trial he raised with Mr Ruth the issue of calling the two prison officers. Mr Austin was the officer-in-charge of the wing where he was held when the offending took place. Mr French had carried out a cell search shortly after one of the rapes was alleged to have taken place and had apparently later told the appellant the complainant seemed happy to be returned to the same cell at the time. The appellant considered the evidence would be helpful. The appellant said that he asked Mr Ruth about the officers on a number of occasions. About three months prior to trial Mr Ruth had told him that Mr French would not be able to assist his case and that he had not been able to get hold of Mr Austin. The appellant said he was prepared to accept Mr Ruth’s advice regarding Mr French at the time, but that about five weeks prior to trial he told Mr Ruth he wanted Mr Austin called as a witness. The appellant then said that approximately one week prior to trial Mr Ruth told him he did not need Mr Austin as a witness as he would only be able to verify what the unit manager was going to say in evidence. The appellant said that he felt he had no choice but to accept Mr Ruth’s advice given the short time until trial.

[16] The thrust of the appellant’s evidence in his first affidavit was that he wanted Mr Ruth to speak to Mr Austin and Mr French as potential witnesses, rather than that he gave Mr Ruth an express direction to call them. At no point in his affidavit did the appellant say he directly instructed Mr Ruth to call Mr French. In his second affidavit the appellant sought to improve his evidence by saying he continually asked Mr Ruth to call the officers as witnesses. But in cross-examination the appellant said:

... yeah pretty much every time I got the chance to speak to my lawyer whether it was on the phone or in person I asked him to contact these officers.

which is more consistent with what he had said in his first affidavit.

[17] Mr Ruth’s explanation as to why the witnesses were not called provides background to his advice to the appellant that he did not consider it necessary to call the officers and why the appellant would have accepted that advice.
[18] Mr Ruth said that he spoke to both Messrs French and Austin but formed the view that neither could give evidence that would be helpful to the appellant. Mr Austin made it clear to Mr Ruth he was unwilling to be of assistance and said that other officers to be called by the Crown could give the same information he had. Mr Ruth said that Mr French told him he was leaving the prison service and was unlikely to be available for the trial. Mr Ruth formed the view that the evidence that there was no record of injury to the complainant nor any request for a change of cell could be obtained through cross-examination of the unit manager who was to be called by the Crown, which was preferable from the defence point of view.
[19] During the course of submissions Mr Lawry referred to the evidence that the complainant was seen to have had a black eye at one time. He suggested that the prison records were therefore unreliable. But that is somewhat of a red herring. The complainant accepted in evidence that the appellant was not responsible for the black eye and, more significantly, the complainant did not complain of having received visible injuries as a result of the assaults by the appellant.

[20] Mr Ruth accepted that the appellant wanted him to talk to the officers but said that the appellant never demanded that he call them and that the appellant accepted his advice that any evidence the officers could give would not add to the trial on his behalf. Mr Ruth said the appellant accepted his judgment and advice that it would not be necessary to call the officers. In cross-examination Mr Ruth was not seriously pressed on the issue of whether he had spoken to the officers nor on his evidence that the appellant accepted his advice.
[21] We prefer the evidence of Mr Ruth to the appellant. Undoubtedly the appellant wanted Mr Ruth to speak to the officers. But Mr Ruth did so.
[22] The appellant has sought to improve his case on this issue by elevating what was a request to Mr Ruth to speak to the witnesses to a firm instruction that he was to call the witnesses. Even on his own evidence the appellant knew that Mr Ruth was not proposing to call the witnesses. The appellant acknowledged in his first affidavit that he accepted Mr Ruth’s advice, albeit grudgingly, that Mr French would not assist and later, that Mr Austin could not add anything. He did not protest at the time.
[23] There was a further issue in relation to Mr French. Mr French initially said that he had no recollection of speaking to Mr Ruth but then later said that he had no contact with Mr Ruth at all. His evidence is in conflict with Mr Ruth on this point.
[24] Again we prefer Mr Ruth’s evidence that Mr French told him he was leaving the prison service and that was the reason Mr French gave him why he might be unavailable to give evidence. There was no basis for Mr Ruth to have that knowledge if he had not spoken to Mr French. While Mr French suggested everyone knew, there was no reason for Mr Ruth to know.
[25] We conclude that while the appellant asked Mr Ruth to speak to the officers (and Mr Ruth did so), the appellant ultimately accepted Mr Ruth’s advice that it was not necessary to call the witnesses.

The conflict issue

[26] During the course of the cross-examination of the complainant at trial Mr Ruth put to him that he was familiar with prison and could have raised the issue of the assaults with the authorities. In response to this questioning, the complainant at one stage blurted out:

As an ex-lawyer of mine you would know all this Mr David Ruth.

Mr Ruth carried on with the cross-examination. He did not discuss that matter with the appellant or raise the matter with the Judge.

[27] It is now submitted for the appellant that Mr Ruth’s failure to raise the issue with the appellant has in some way led to a miscarriage of justice. When pressed as to what effect it might have had, Mr Lawry submitted that if the matter had been raised with the appellant, he might have instructed Mr Ruth to raise the issue of aborting the trial with the Judge.
[28] In cross-examination of Mr Ruth, Mr Hart suggested that the complainant had effectively controlled the cross-examination. But a review of the transcript shows that the complainant’s outburst did not affect Mr Ruth’s cross-examination. Mr Ruth continued to press the complainant on the issue of his knowledge of how the system within prison worked. The complainant certainly spoke over Mr Ruth’s questions at times. He was a difficult witness. But Mr Ruth was entitled to take the view that the complainant’s behaviour was likely to have left an unfavourable impression on the jury rather than try to overbear him. Mr Ruth did not “go easy” on the complainant.
[29] The suggestion that if Mr Ruth had raised the matter with the appellant, the appellant might have instructed Mr Ruth to seek to have the jury discharged and that the Judge might have acceded to that request is entirely speculative. It is extremely unlikely the Judge would have considered aborting the trial. Mr Ruth told this Court that he has no file for the complainant. He said he has no recollection as to whether or not he ever did act for the complainant. Even if an inquiry had been made of Mr Ruth at the time, there would have been no reason for the Judge to stop the trial. As the Supreme Court observed in R v Sungsuwan [2006] 1 NZLR 730 at [65], where error or irregularity is alleged and attributed to counsel, but would not have affected the outcome - was not material - there will be no need to analyse and judge the conduct.
[30] With the benefit of hindsight, Mr Ruth should have discussed the matter with the appellant to reassure the appellant of the position, but his failure to do so has not led to a miscarriage of the trial process.

The election not to give evidence

[31] The appellant also said in his affidavit that although Mr Ruth advised him he should not give evidence he told Mr Ruth he wanted to give evidence. He says that after the Crown case closed he went back to the prison overnight, rang and spoke to his partner Kelly Anderson, and they decided that it was a good idea for him to give evidence. He said that he had made up his mind that he would give evidence. He then said that:

36. The following day I went to court. I spoke to Mr. Ruth before court started and told him that I wanted to give evidence. Mr. Ruth told me that he had spoken to Kelly and that Kelly had agreed I shouldn’t give evidence. I said to Mr. Ruth that I was going to give evidence, and wanted to speak to Kelly.
37. I was then brought into court. Kelly was seated in the front row of the public gallery. She was crying. I stopped in front of Kelly and asked her what I should do. Kelly said to me that I should do what my lawyer said. I then said to Mr. Ruth that I would not give evidence.
38. It is my view that the way I was pressured into not giving evidence was unfair, particularly as I made it clear to Mr. Ruth from the outset that I wanted to give evidence at trial.

[32] On the basis of that evidence it was submitted the appellant had been improperly pressured not to give evidence.
[33] The appellant’s evidence on the issue is not supported by an affidavit from his then partner. It is quite contrary to the evidence of Mr Ruth and his junior, Mr Cook, on the issue.
[34] At the closure of the Crown case the trial was adjourned to the next day to enable the defence to consider the election. Mr Ruth had advised the appellant against giving evidence. The appellant wanted to think about that overnight.
[35] The evidence of Mr Ruth and Mr Cook was that they then both saw the appellant in the cells prior to Court the next morning. They discussed the issue of the appellant giving evidence again. Mr Ruth confirmed his advice that in his opinion it would not be in the appellant’s best interests to give evidence. He said he had spoken to other lawyers about it. The appellant ultimately agreed. Mr Ruth then went back to Court to communicate that to the Crown and Mr Cook prepared a written confirmation of the appellant’s decision. The appellant signed the confirmation in the cells. The instruction recorded:

I, Dean Noble, do not wish to give evidence in my case. I have been advised that I can give evidence and my choice is:

I do not wish to give evidence.

The note was then signed and witnessed by Mr Cook. Mr Cook confirmed that the appellant had initialled the changes to it and, in particular, had written in his own handwriting the statement “I do not wish to give evidence” to confirm the decision.

[36] The appellant’s evidence is just not credible. The suggestion that the matter was left on the basis he would give evidence but then, when he came into Court and saw his girlfriend crying, he changed his mind under pressure, cannot be right. The appellant had already signed the note confirming his instructions before he was brought into Court. We find that the appellant was given advice that it would not be in his interests to give evidence and, ultimately, accepted that advice. There was no undue pressure. The decision was his. There is nothing in this point.

The new evidence

[37] Following the trial, two former prison inmates, Darrell Moses and Troy Wells have come forward to give evidence which challenges the veracity of the complainant.
[38] Darrell Moses says he has known the complainant since he was about seven years old. He says that about six years ago he and the complainant were sharing a cell. Mr Moses said that on returning to the cell after a meeting he learnt the complainant had made a false complaint that he had been stabbed by Mr Moses. Mr Moses identifies a number of prison officers that he spoke to at the time about the matter. He also says that the complainant came to his cell when he, Moses, was locked up and swore at him, saying “get fucked you nigger” but that when he next met the complainant at Paparua Prison, the complainant apologised to him for that. Mr Moses says that the complainant then asked him then if he knew who Dean Noble was and told him that he was taking him up for rape. Mr Moses said that when asked if it had happened the complainant said “fuck off I wouldn’t let a filthy nigger do that to me”. Mr Moses says that the complainant told him that if he played his cards right he would get ACC and then could get himself a Harley and an Oscar because women did it all the time. He told Mr Moses he was doing it to get back at Mr Noble.
[39] Mr Moses’ affidavit was only sworn on 16 September 2009, a week before the hearing. He says he came forward with the information after speaking to the appellant while in west wing at Auckland Prison in July or August 2009.
[40] Mr Wells gave evidence that he met the complainant in April 2008 and that he heard rumours the complainant had been a victim of a sexual assault by the appellant. When he raised the matter with the complainant, the complainant said “I know what you’re going to ask me, it was not me, it was my cousin” but then the next night the complainant handed him his statement and told him that he, the complainant, was the victim. He said the complainant told him the appellant had given him lots of grief and this was his way of getting “pay back” and he said he was going to sue Corrections. Mr Wells said that the complainant asked him if he would be his support person when he went to Court. Mr Wells said that the complainant then told Mr Wells he had made the story up. Mr Wells says he went along to the District Court and acted as support person for the complainant and sat directly next to him while he gave evidence. He said that when he first heard that the verdict was guilty he felt sick because he knew it was wrong. He decided to call an old friend (who he has declined to name) and then authorised his number to be passed on to the appellant’s barrister.
[41] The essence of their evidence is that the complainant has fabricated the allegations against the appellant to get back at him for some slight or slights. Mr Hart submitted that the evidence of both was relevant and cogent and that if it had been available to the jury, the jury could only have convicted if they totally rejected it.
[42] The Crown did not obtain an affidavit from the complainant in response to these allegations. Mr Downs submitted the evidence of Messrs Moses and Wells was effectively answered by the evidence of two independent witnesses, Messrs Cranshaw and Watson. He submitted the evidence of Messrs Moses and Wells was not sufficiently credible to be admissible. For the reasons that follow, we agree with the Crown’s approach.
[43] The test for the admission of new evidence on appeal was stated by this Court in R v Bain [2004] 1 NZLR 638:

[22] An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant's point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.

[23] Whether new evidence is sufficiently credible to be admitted cannot be much elaborated in the abstract. Both inherent and contextual credibility will usually need consideration. Obviously evidence which is wholly incredible cannot avail the appellant, but beyond that it is neither necessary nor desirable to go in this general summary. The criteria of freshness and credibility govern whether the new evidence should be admitted or, putting the matter more formally, whether leave should be granted to admit the evidence. Fresh evidence is not admitted as of right. Its admission is a matter of discretion under s 389 of the Crimes Act. The freshness and credibility criteria are the standard measures which guide the exercise of the discretion. In the end, however, the discretion must be exercised in whatever manner the Court considers will further the overall interests of justice, both to the appellant and to the Crown which represents the community.

[24] If the further evidence does not qualify for admission, leave to admit it will not be granted and that will be the end of the matter. If it does qualify the Court then moves to the next stage of the inquiry, which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.

The test was confirmed by the Privy Council in Bain v R [2007] UKPC 33; (2007) 23 CRNZ 71 and applied by this Court in R v Oliver [2007] NZCA 326 at [42].

[44] A fundamental requirement for fresh evidence is that it be sufficiently credible. As noted, both inherent and contextual credibility need consideration.
[45] There are significant credibility issues with the evidence of Mr Moses and Mr Wells. Both were called for cross-examination on their affidavits. Neither were impressive witnesses.
[46] Mr Moses did not give any details of the incident he alleged of the complainant making a false allegation against him. It is difficult to conceive how the complainant could make an allegation of stabbing when there was no weapon and apparently no injury. It is inherently improbable.
[47] More significantly, Mr Moses’ evidence is that the conversation he had with the complainant was prior to the trial. He referred to the complainant “taking [the appellant] up” on these charges. Under cross-examination he said that the conversation was some time about June, July or August. He said it had occurred after he had been recalled back to Paparua Prison. There is a fundamental difficulty with that evidence. The trial was held in the District Court at Christchurch on 20 and 21 May 2008. The trial would have been completed by the time Mr Moses says he had the conversation with the complainant. Further, Mr Moses is not an honest man. Without objection leave was granted for him to be cross-examined about his previous convictions for dishonesty. Mr Moses has 16 convictions for theft, six for shoplifting, three for receiving stolen property, seven for fraud and five for aggravated robbery. The convictions show that Mr Moses has a propensity for dishonesty. He was not a credible witness.
[48] There are also problems with the evidence of Mr Wells. It is inherently implausible that the complainant would volunteer to a prisoner that he had just met, and before checking whether that prisoner knew or was even a friend of the appellant that he had made up the story to get “pay back” against the appellant. Further, Mr Wells acted as support person for the complainant throughout the trial. His suggestion that he felt sick when the verdict was delivered just does not ring true. On his evidence, he knew before trial that the complainant’s allegations were false. Despite that he actively assisted the complainant with them by supporting him at Court. He participated in the process and encouraged the complainant by his presence.
[49] The Crown also sought and obtained leave to cross-examine Mr Wells about his previous convictions. He has 14 convictions for burglary, five for receiving stolen property, three for theft, and four for conversion of cars. In his affidavit Mr Wells was prepared to admit to previous convictions for unlawful sexual connection and assaults and possession of firearms but conveniently chose not to refer to his convictions for dishonesty. Further, he has a motivation for feeling aggrieved at the complainant. Under cross-examination he volunteered that:

I was absolutely dismayed with the way the prison allowed the way the guy got to get locked up later than anyone else, he’d have special showers, he literally had control of the wing he was in, you can’t touch me that was how he was pursuing himself, the man even offered to give me a blow job for crying out loud in order to support him he was scratching for support.

[50] Further, the evidence of Messrs Moses and Wells is inconsistent with the rebuttal evidence of Messrs Cranshaw and Watson.
[51] The thrust of Mr Moses’ and Mr Wells’ evidence is that the complainant made up the allegations of abuse when he complained to the police in 2007. The Crown filed affidavits from Mr Cranshaw, an investigator who, at the relevant time, was employed by the Department of Corrections and Prison Services as the crime prevention officer for Otago/Southland and a Mr Watson, a clinical psychologist. Mr Cranshaw interviewed the complainant on 28 June 2005 and took a full written statement from him. The statement is consistent with the evidence the complainant gave at trial. The evidence of Mr Watson was to the same effect. He had interviewed the complainant on 10 June 2005. The complainant told him of the violation by the appellant but was reluctant to have the matter taken further at the time because he said he would not feel safe within the prison if he did so.
[52] The evidence of both Mr Cranshaw and Mr Watson is consistent with the complainant’s evidence given at trial. It would be admissible under s 35(2) of the Evidence Act 2006. The evidence of the independent investigator and independent psychologist that the complainant told them of the violation at the time further undermines the credibility of Mr Moses’ and Mr Wells’ evidence to the contrary.
[53] The timing of the complaints to Mr Cranshaw and Mr Wells is also significant. If the complainant made up a false story to get at the appellant, it is extremely unlikely that he would tell others about it in 2005 but ask that it be kept confidential and then wait almost another two years before formally laying a complaint to the police.
[54] In all the circumstances we are not satisfied the evidence of Messrs Moses and Wells is sufficiently credible to meet the test for admission in support of the appellant’s appeal.
[55] For those reasons the appeal must be dismissed.
[56] After our decision was finalised, but before delivery, the Crown filed a memorandum on 20 October 2009 to advise the complainant died on 16 October following self-inflicted injuries sustained in custody some days earlier. That unfortunate fact does not affect the decision.

Solicitors:
Crown Law Office, Wellington