Lal v R [2012] NZCA 20 (21 February 2012)

Last Updated: 1 March 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA304/2011 [2012] NZCA 20

BETWEEN JESHAL JASVIN LAL Appellant

AND THE QUEEN Respondent

Hearing: 14 February 2012

Court: Stevens, Ronald Young and Andrews JJ

Counsel: Appellant in Person J M Jelas for Respondent

Judgment: 21 February 2012 at 3.15 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1] Mr Lal was convicted by a jury in the High Court at Auckland of blackmail. He appeals:

• (a) against the fact that his trial proceeded on the basis that the prosecution evidence included text messages from the complainant. The appellant says that these text messages were improperly admitted following a pre-trial ruling of Lang J[1] thereby causing a miscarriage of justice; and
• (b) the particular use of the text messages from the complainant by the Crown at trial, which he says caused a miscarriage of justice.

Facts

[2] The complainant and the appellant were friends. On the evening of 18 July 2008 they were drinking and socialising together. The complainant became grossly intoxicated and her memory of the events clouded. The complainant recalls being in the appellant’s car with the appellant on top of her. She next recalls waking. She had no clothes on. The complainant believed she had been sexually violated by the appellant. Some days later the appellant admitted to the complainant that he had had sexual intercourse with her on that night.
[3] Some two months later there was an exchange of text messages between the complainant and the appellant. The appellant’s text messages claimed he had recorded the sexual intercourse between them and had taken pictures of the complainant with a sexual content that night. The appellant threatened to send the images to the complainant’s parents and her boyfriend and publish them on an internet site unless she agreed to continue to have sex with him.
[4] Ultimately a complaint was made to the police. When interviewed by the police, the appellant said he had not recorded the sexual activity and the text messages he sent were a joke. The appellant was charged with rape and blackmail.
[5] In the meantime the complainant had left New Zealand. She did not return for the appellant’s trial, so that ultimately the Crown offered no evidence on the rape count and the appellant was discharged. Despite the absence of the complainant, the prosecution on the charge of blackmail proceeded with the Crown relying principally on the text messages sent by the appellant. At both the trial, the pre-trial hearing and the trial, the appellant was represented by counsel
[6] At the hearing before us the appellant represented himself. The appellant asked for and was provided with an interpreter to assist him in the conduct of the appeal.

Admissibility of the text messages

[7] The Crown advised the appellant’s counsel that at trial it proposed to lead evidence of text messages from the complainant, as well as the appellant, so that the jury would see the vital text messages from the appellant to the complainant in context. The appellant objected to this evidence as inadmissible hearsay. After a pre-trial hearing, Lang J concluded the complainant’s text messages were not hearsay and were admissible.
[8] The Judge said:[2]

[7] Counsel for Mr Lal accepts that the text messages that Mr Lal sent to the complainant are admissible against him. She contends, however, that the text messages that he received from the complainant constitute hearsay evidence in terms of the Act. She argues that the evidence does not meet the tests prescribed by ss 17 and 18 of the Act for the admission of hearsay evidence. For that reason she contends that the text messages that Mr Lal received from the complainant are not admissible against him.

[9] After referring to the definition of a hearsay statement in s 4 the Evidence Act 2006, he said:[3]

[9] I do not consider that the text messages fall within this definition. The Crown does not rely on them to prove the truth of the statements that the complainant made in the text messages that she sent to Mr Lal. Rather, it points to the fact that they constitute material that Mr Lal had in his possession at the time that he sent text messages to the complainant. It will argue that he responded to the complainant’s text messages ... by sending further text messages to her. They therefore form part of the narrative and provide the context within which Mr Lal sent the text messages that give rise to the charge of blackmail.

[10] And further:[4]

[11] Counsel for the accused also argues that the defence will suffer significant prejudice as a result of the fact that the Crown will not be calling the complainant as a witness at trial. She says that she would want to cross-examine the complainant about her reaction when she received the text messages from Mr Lal. She submits that this evidence will be highly relevant to the jury’s assessment of his intention when sending the text messages that the Crown relies upon to establish the charge.

[12] I do not accept this submission either. The critical issue that the jury will need to decide relates to Mr Lal’s intention at the time that he sent the text messages that the Crown relies upon to establish the charge. The manner in which the complainant reacted to those text messages has no relevance to that issue. For that reason the defence will not be prejudiced by its inability to cross-examine the complainant on this issue.

[11] The appellant’s notice of appeal challenged the Judge’s decision to admit the text messages from the complainant. However, no grounds in support of this challenge were identified in the notice of appeal. In his written submissions provided to us at the beginning of the hearing, the appellant accepted as correct that the text messages from the complainant were not hearsay. This was on the basis that the Crown said the content of the complainant’s texts were not to be relied upon by the jury to establish the truth of their content.
[12] We are satisfied the text messages sent by the complainant to the appellant were clearly admissible for the reasons given by Lang J.
[13] However, the appellant says it was unfair and prejudicial to him that the complainant was unavailable to give evidence and that this together with the admission of the complainant’s texts unfairly prejudiced the appellant at trial. This claim is based on the appellant’s submission that (when referring to the charge of blackmail):

whether the accused intended to cause the complainant to act in accordance with his will could only be tested via the complainant.

[14] This submission is based on a misapprehension. As the Judge identified in his written material provided to the jury (a question trail), the Crown had to prove Mr Lal’s threat, his intention to cause the complainant to act in accordance with his will and Mr Lal’s intention to obtain a benefit as a result. What the complainant’s view was of Mr Lal’s intention was irrelevant. Mr Lal had told the police officer when interviewed that his threats to the complainant were intended to be a joke. It was up to the jury to assess this claim. There was no unfair prejudice in the prosecution failing to call the complainant to give evidence at trial. We reject this ground of appeal.

Unfair conduct by the Crown

[15] The second ground of appeal identified in the notice of appeal was:

Alternatively if the evidence was admissible, the manner in which this evidence was used in the Crown’s closing address was unfair and caused a miscarriage of justice.

[16] In his written and oral submissions before us the appellant did not identify specifically how the Crown’s closing address was unfair in this context. However, the appellant did claim the Crown had acted unfairly in a number of ways. We consider each complaint in turn.
[17] Firstly, the appellant complained that the Crown focussed on his text messages and not on the wider picture when conducting the investigation into the case and the prosecution of the case. We consider the Crown was entitled to focus on the text messages, given they were the vital evidence pointing to the appellant’s guilt. There was no unfairness in this aspect of the Crown conduct.
[18] Secondly, the appellant claimed that the Crown were not entitled to invite the jury to infer the appellant was threatening to publish the photographs unless the complainant had sex with him. The Crown were entitled to invite the jury to infer from the texts that the appellant was demanding sex in return for not publishing the photos.
[19] At the interview of the appellant the detective put to the appellant that he had sent a text to the complainant which included the words “sleep with me once a week, at least”. The appellant told the detective: “I was just joking like, pretending like, cause she’s slept with me once”.
[20] Whether the jury accepted the inference invited by the Crown that the appellant was threatening to expose the photographs unless the complainant had sex with him was a factual matter for the jury. There was no unfairness in the Crown’s approach to this.
[21] Thirdly, the appellant complained that because the Crown “had a European guy as a representative” that person could not properly interpret the text messages of the complainant and the appellant and who were Indian and who did not have English as a first language. We consider it was for the jury to interpret the text messages and for them to be satisfied of their meaning. The ethnic origin of the prosecutor had no relevance.
[22] Fourthly, the appellant says the prosecutor’s words were “too complicated and hard to understand” for the jury. This submission, if correct, was no more than a limitation on the Crown case. The Judge comprehensively directed the jury and gave them a simple question trail in what was a straight forward case. There was no unfairness in the Crown conduct.
[23] The other complaints in the appellant’s submissions are an attempt to reargue the facts of the case. They have no merit in this appeal.

Summary

[24] We are satisfied the Judge correctly admitted the complainant’s text messages at trial. We are also satisfied that there was no misconduct or unfairness in the way in which the Crown conducted the appeal. For the reasons given, therefore, the appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Lal HC Auckland CRI-2009-004-5813, 16 February 2011.
[2] Pre-trial ruling at [7].
[3] At [9].

[4] At [11] and [12].