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Johnston v R [2012] NZCA 559; [2013] 2 NZLR 19; (2012) 26 CRNZ 86 (6 December 2012)

Last Updated: 26 January 2018

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

NOTE: EXTANT ORDER SUPPRESSING DETAILS THAT COULD LEAD TO IDENTIFICATION OF THE BANK MANAGER REFERRED TO IN MR ANDERSON'S EVIDENCE OR THE CITY IN WHICH HE LIVES.

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.



IN THE COURT OF APPEAL OF NEW ZEALAND



CA262/2012 [2012] NZCA 559


BETWEEN JUSTIN AMES JOHNSTON Appellant

AND THE QUEEN Respondent


Hearing: 31 October 2012

Court: White, Allan and Lang JJ

Counsel: B J Horsley and J C Bonifant for Appellant

C L Mander and F E Cleary for Respondent

Judgment: 6 December 2012 at 10.00 am


JUDGMENT OF THE COURT



A The appeal is allowed.

B A retrial on the charge of attempted sexual violation is ordered.

  1. Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or



JOHNSTON v R COA CA262/2012 [6 December 2012]

other publicly available database until final disposition of retrial.

Publication in law report or law digest permitted.




REASONS OF THE COURT


(Given by White J)



Table of Contents

Para No Introduction [1] Background [3] The trial [8] Grounds of appeal [12] Presence on property sufficiently proximate? [14] Submissions for Mr Johnston [23] Crown submissions [24] Discussion [28]

Attempt without intention to carry out sexual violation on the

night in question? [36]

Submissions for Mr Johnston [38] Crown submissions [40] Discussion [42]

Admissibility of Crown propensity evidence from Mr Anderson

and Mr Braddock [61]

Submissions for Mr Johnston [71] Crown submissions [74] Discussion [77] Amendment of the indictment [83] Defence propensity evidence [88] Result [97]




Introduction


[1] Justin Johnston appeals against his conviction for attempted sexual violation following a jury trial in the High Court at Wellington in December 2011. During the trial he pleaded guilty to a second charge, threatening to do grievous bodily harm.

[2] Mr Johnston was sentenced to preventive detention.1 An appeal against sentence has been abandoned.

Background


[3] Both charges related to the evening of 19 July 2010 when Mr Johnston was found unlawfully in the back garden of a private residential property in Upper Hutt. The property comprised a family home located at the end of a long driveway, a separate garage at the front and a separate sleep out at the rear of the property. This was used by the complainant, W, a 16 year old girl, who lived with her family in the home on the property.

[4] On the evening in question, after W had gone out to the sleep out, her father (Mr W), who had gone outside to get some firewood, noticed that the sensor lights by the sleep out were on and then saw Mr Johnston crouched on the back lawn. Mr Johnston was wearing dark clothing, a beanie and gloves and was carrying a torch.

[5] Mr W chased Mr Johnston to an adjoining property where there was a struggle. After threatening Mr W with a small garden fork, Mr Johnston managed to escape, but was subsequently apprehended by the police. His car was located several streets away from W’s address.

[6] The police found six cigarette butts belonging to Mr Johnston on a neighbouring property at a point where there was a good view of the front door of the Ws’ house. Subsequent police investigation revealed that a neighbour had seen a person crouching on the Ws’ property on 7 June 2010. Another neighbour had seen a vehicle fitting the description of Mr Johnston’s car parked in the vicinity of W’s address on four or five occasions before 7 July and 19 July 2010.

[7] There was also evidence that a wheelie bin belonging to W’s family had been stolen on 14 July 2010 and that when the police searched Mr Johnston’s flat they

located a notepad with the wheelie bin company’s name and phone number on it.

1 R v Johnston [2012] NZHC 780.

The trial


[8] At Mr Johnston’s trial, the Crown proceeded with one charge of attempted sexual violation of W and one charge of threatening to do grievous bodily harm to W’s father. As already noted, Mr Johnston pleaded guilty during the trial to the second charge. The essence of his defence to the first charge was that he was on the property to commit a burglary, not a rape.

[9] At the trial both the Crown and defence sought the admission of propensity evidence. The Crown sought to adduce propensity evidence consisting of:

(a) A previous conviction for rape in 1993 when Mr Johnston broke into and entered the 26 year old victim’s flat. He armed himself with a knife and used masking tape to restrain her.

(b) A previous conviction for rape in 1994 when Mr Johnston abducted a

15 year old from her home. The abduction involved gagging and restraining the victim.

(c) The evidence of Anthony Anderson. Mr Anderson gave evidence alleging that Mr Johnston planned a bank robbery with him when they were in Paremoremo Prison in May or June 2006. Part of the plan involved Mr Johnston abducting a bank manager and his teenage daughter. The plan included rape of the teenage daughter by restraining her with chains.

(d) The evidence of Evan Braddock. Mr Braddock gave evidence that Mr Johnston discussed with him a plan to kidnap and rape a young woman. No specific victim or place was mentioned. The discussion allegedly took place between 19 November 2009 and 9 December

2009. Mr Braddock also gave evidence that Mr Johnston was obsessed with teenage girls.

[10] The previous convictions for rape were admitted into evidence by way of admission of facts under s 9 of the Evidence Act 2006 after a ruling by Ronald Young J that the evidence was admissible.2 The evidence of Mr Anderson and Mr Braddock was ruled admissible in the same pre-trial ruling and was given at trial by Mr Anderson and Mr Braddock. The Crown had proposed that Mr Anderson and Mr Braddock give evidence on other details of Mr Johnston’s plans, which included murder of the victims. The Crown had also sought admission of evidence that Mr Johnston had threatened to rape Mr Anderson’s daughter. These aspects of the

evidence were, however, ruled inadmissible and only the details referred to above at

[9] were allowed into evidence.3

[11] The defence sought to have ruled admissible all of Mr Johnston’s previous convictions for property-related offending. Kós J, however, only allowed those relating to burglary to be admitted.4 The evidence of the burglary convictions was to be admitted by way of agreed facts. The list of convictions prepared by the defence initially included a conviction for burglary of a dairy. The Crown opposed the inclusion of the dairy burglary and the conviction was removed from the memorandum. As a result, the final memorandum contained evidence of 26 convictions for burglary of residential premises and two convictions for possession

of instruments for burglary.

Grounds of appeal


[12] Mr Johnston appeals against his conviction on the charge of attempted sexual violation of W on the following grounds:

(a) The Judge erred in finding that as a matter of law Mr Johnston’s presence on the property was sufficiently proximate to constitute an attempt to sexually violate W.

(b) The Judge misdirected the jury that an attempt was proved even if there was no intention to carry out the offending on the night in

2 R v Johnston HC Wellington CRI-2011-085-1917, 18 August 2011.

3 At [59]–[63].

4 R v Johnston HC Wellington CRI-2011-085-1917, 13 December 2011 at [3]–[12].

question.


(c) The Crown propensity evidence from Mr Anderson and Mr Braddock was inadmissible.

(d) The Crown’s amendment of the indictment prior to trial to exclude other counts of burglary and possession of instruments for burglary led to a miscarriage of justice.

(e) The Judge erred by not allowing the defence to adduce propensity evidence relating to Mr Johnston’s tendency to commit property- related crimes generally.

(f) The Crown and the Judge improperly commented on whether the burglary convictions could have had a sexual motive or could have been entries onto property with the intention of committing a crime against a person.

[13] We address each ground in turn.


Presence on property sufficiently proximate?


[14] The starting point is s 72 of the Crimes Act 1961, which provides:

72 Attempts

(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.

(2) The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

(3) An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

[15] The trial Judge, Kós J, in his ruling on this issue relied on this Court’s decision in R v Harpur.5 In Harpur, the appellant was alleged to have sent a series of text messages to a young woman, Ms Black,6 that indicated he was involved in the sexual exploitation of children. Under police guidance Ms Black arranged to meet Mr Harpur, and said she would bring her four year old niece and 10 year old sister with her (neither of whom actually existed). Mr Harpur sent texts to Ms Black

describing in graphic language and detail his intended sexual violation of both girls. Mr Harpur went to the meeting place he and Ms Black had arranged and was met by a police officer. This Court held that Mr Harpur’s conduct was not too remote to constitute an attempt.

[16] Kós J noted that under s 72 and its interpretation by this Court in Harpur, the question was “where the line is drawn between mere conceptualisation and planning on the one hand, and a sufficiently proximate act by way of attempt on the other”.7

The Judge noted that in Harpur this Court held that s 72 “reflected Parliament’s desire to ensure that an act could constitute an attempt even if it did not unequivocally demonstrate intent”.8

[17] The Judge also noted, again in accordance with Harpur, that a more remote actus reus will be accepted if the intent is clear and that how much remains to be done is relevant but not determinative.9

[18] The Judge then referred to the following passage as the “key” passage in

Harpur:10

[44] In our view, the Crown evidence, if accepted, showed a clear intent to commit a sexual violation of the four year old girl Mr Harpur believed Ms Black could provide. He performed a number of acts which, taken together, constituted an attempt to commit sexual violation. He had moved beyond mere preparation and, at the time of his arrest, was lying in wait for his victim. His conduct was not too remote to constitute an attempt; it was proximately connected with the intended offence. ...

5 R v Harpur [2010] NZCA 319, (2010) 24 CRNZ 909.

6 Not her real name.

  1. R v Johnston HC Wellington CRI-2011-085-1917, 16 December 2011 at [29]. The date reflects the date written reasons were given. The ruling was actually made on 13 December.

8 At [29].

9 At [29]–[30].

10 At [30], citing [44] of R v Harpur.

[19] The Judge then said:

[31] I rely on that passage in my ruling in the present case. I rely also on the list of examples offered in the penultimate paragraph of the Harpur judgment. These are from article 5.01 of the American Penal Code. The Court of Appeal described them as “of interest”. Not a ringing endorsement, perhaps. But in my view a number of items in that list will tend to involve a step in the physical completion of the offence that would normally be regarded as going beyond conceptualisation or planning, to commission:

(a) lying in wait, searching for or following the contemplated victim;

(b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;

(c) reconnoitring the place contemplated for the commission of the crime;

(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated a crime would be committed;

...

(g) soliciting an innocent agent to engage in conduct constituting an element of the crime.

...

[33] In this case the Crown evidence that Mr Johnston had planned the

intrusion into the complainant’s property over a number of nights prior to the

19th, taken in combination with his entry into the property on the 19th, is sufficient in law to constitute an attempt.

[20] In his summing up the Judge provided the jury with a question trail. The first question was whether the jury was sure that Mr Johnston was present at the property with the intent of committing sexual violation against the occupant of the sleep out. The second question was:

Are you sure (i.e satisfied beyond a reasonable doubt) that the accused committed a physical act for the purpose of accomplishing that object – i.e sexual violation of the occupant of the sleep out?

[21] The Judge explained to the jury that he had ruled, as a matter of law, that if the Crown’s evidence were accepted it would amount to a sufficiently proximate act to constitute an attempt. The Judge then said:

[52] If you have reached [an affirmative answer to question one] and found that he was at the address, in the back garden, with that intent, then

you are entitled to find, and you should find, that his presence in the back garden constitutes the physical act required by law to manifest his intent. That is, it would meet the requirement of an attempt.

...

[54] So question 2 is in effect answered by question 1. It had to be included as a matter of legal completeness, and I have done so at the request of counsel, but that is my direction to you. You will focus in your deliberations on question 1. If you answer question 1 affirmatively you need not trouble long on question 2. ...

[22] For the purposes of assessing this ground of appeal we assume, as counsel did when arguing this ground, that the Judge’s ruling was on the basis Mr Johnston intended to carry out the offending on the night of 19 July. The reasons for this assumption will become apparent when we deal with the second ground of appeal.

Submissions for Mr Johnston

[23] For Mr Johnston, Mr Horsley submitted that the Judge erred because:

(a) The decision in Harpur was distinguishable. In Harpur there was extensive direct evidence of the accused’s intentions. Here, because of a lack of evidence, the intent was uncertain.

(b) The Judge’s reliance on the American Model Penal Code failed to take into account that the examples are only of assistance if they are “strongly corroborative” of the accused’s criminal purpose. Here Mr Johnston’s acts could not be strongly corroborative of an attempt to commit sexual violation as they were equally corroborative of an intent to burgle.

(c) The Judge’s ruling and direction were inconsistent with the English

cases of R v Geddes11 and R v Toothill.12







11 R v Geddes (1996) 160 JP 697 (CA).

12 R v Toothill [1998] Crim LR 876 (CA).

Crown submissions

[24] For the Crown, Mr Mander submitted that, when seen in the context of the Judge’s question trail, there was no problem with his direction on proximity. In particular, Mr Mander submitted that because, before reaching question two, the jury would already have to have been satisfied Mr Johnston was on the property with intent to commit sexual violation, the Judge’s direction on physical proximity was correct.

[25] Mr Mander also submitted that the Judge’s ruling was a correct application of the principles from Harpur. Although the intention was less explicit than in Harpur, there was enough evidence, if accepted by the jury, to infer a level of intent that would render the act in question sufficiently proximate. The inference of an intention to commit sexual violation was available because:

(a) the propensity evidence demonstrated a propensity to break into dwelling houses and rape female occupants, a fascination with kidnap and rape of young girls and ongoing sexual interest in adolescent girls;

(b) the reconnoitring of the property for around six weeks from 7 June

2010, which was evidenced by the cigarette butts found on the driveway, sightings of Mr Johnston’s car and the missing wheelie bin, illustrated that Mr Johnston was gathering information about the family;

(c) the nature of the property, with a detached sleep out was ideal for carrying out a sexual assault on W;

(d) Mr Johnston was found on the property close to the sleep out;

(e) Mr Johnston had triggered sensor lights on the back patio and the sleep out, which indicated he had been moving towards the sleep out;

(f) Mr Johnston had gloves, a beanie and a torch with him as well as a garden fork to use as a weapon;

(g) Mr Johnston’s car was parked nearby; and

(h) theft could properly be excluded as a motive for being on the property, given:

(i) where the appellant was found on the property (around the back);

(ii) the nature of the property (it had sensors, a burglar alarm and was occupied); and

(iii) that to get to where he was found Mr Johnston had moved past a garage that had its door wide open and contained valuables.

[26] Accordingly, Mr Mander submitted that the totality of Mr Johnston’s conduct, if accepted by the jury, indicated an intent strong enough that the act of being on the property was sufficiently proximate to constitute an attempt. The lack of a weapon or tape should not be seen in this case as reducing Mr Johnston’s intent. Mr Johnston did not bring a knife with him on either of his previous rapes and in the

1994 rape he did not use tape but rather gagged the victim with clothing.

[27] Mr Mander then submitted that Geddes and Toothill are unduly narrow in their categorisation of what constitutes an attempt. This Court in Harpur was of the view that Geddes should not be used as the basis for determining when an act constituted an attempt. Given that the reasoning in Toothill was based on Geddes and preceded Harpur, the approach in the English cases should not be relied upon. Accordingly, an act less proximate than knocking on the door or attempting to enter the sleep out was sufficient to constitute an attempt in this case. The decisions of

this Court in R v Bateman13 and Harpur held that arranging a meeting place for the

purpose of committing an offence and appearing at that meeting place is sufficient to

constitute an attempt. By analogy, being on the property with the requisite intent in the present case was sufficient to constitute an attempt.

Discussion

[28] The issue is finely balanced, but we consider Mr Johnston’s acts were

sufficiently proximate to constitute an attempt.

[29] In Harpur this Court agreed with the view of Professor Kent Roach that “a more remote actus reus will be accepted if the intent is clear”.14 The Court held that:15

Mr Harpur’s intent, as expressed in his text messages could hardly have been clearer ... As we have said, strong evidence of intent, as there is in this case, can assist in assessing the significance of acts done towards the commission of the intended offence.

Mr Horsley’s argument rests on the fact that unlike in Harpur, there was no direct evidence of Mr Johnston’s intent. As a result, the evidence as to intent was substantially less clear than was the case in Harpur, where the accused’s own statements clearly demonstrated his intent. In our view, however, it is important to draw a distinction between the clarity of the intent alleged by the Crown and the strength of the evidence to support the intent alleged by the Crown. It is clear from Harpur that in approving the principle that a less proximate actus reus will be sufficient where the intent is clear, this Court meant the intent to be assessed on the basis that the jury accepts the essential attributes of the Crown case. The Court

held:16

... The purpose of subs (2) is to define roles and make clear that judges should withdraw an attempt charge from the jury if the judge considers, on the basis of the Crown evidence, even if accepted, that the offender never got beyond merely preparing to commit an offence or that his or her acts were otherwise too remote.







14 At [25], citing K Roach Criminal Law (Irwin Law, Toronto, 2000) at 102.

15 At [38].

16 At [14] (emphasis added).

[30] If the Crown case, as outlined above,17 was accepted, then there was a clear intent in the sense envisaged by this Court in Harpur. As Mr Horsley points out, the evidence supporting the intent is not as strong as in Harpur because it is based on propensity reasoning rather than documentary evidence. In addition, there is an alternative explanation for Mr Johnston’s presence on the property.

[31] Those factors do not detract, however, from the clarity of the intent asserted in the Crown case. If the jury accepted the Crown’s evidence, it would accept that Mr Johnston had said he wanted to sexually violate a young girl, that he had a propensity to intend to do that, that his behaviour leading up to the night he was found was consistent with that intent and that where he was found on the property was also consistent with that intent. The argument for the defence that his presence in the garden could also be explained by an intent to commit a burglary does not detract from the clarity of the intent alleged by the Crown. If the jury accepted the Crown evidence, they had to reject the burglary explanation.

[32] The jury were clearly directed that before finding that there was an attempt, they had to be satisfied that Mr Johnston was in the garden with the requisite intent. Assuming for present purposes that there was a clear intent, Mr Johnston’s presence on the property with an intent to commit sexual violation is sufficiently proximate to constitute an attempt, for two reasons.

[33] First, in Bateman and Harpur this Court held that arranging to meet someone for the purpose of taking him or her to another place to commit an offence and then going to the meeting place was sufficient to constitute an attempt. In those cases, like the present, the defendant was effectively lying in wait for the victim. In this case the offence was either going to be committed in the sleep out or the victim was going to be abducted. If the offence was actually going to be committed in the sleep out, then Mr Johnston’s acts would have been more proximate than cases where the defendant still has to travel somewhere to commit the offence. If the victim was first to be abducted, then there is no difference in terms of proximity between the present case and Harpur. Waiting for children to be delivered for the purpose of immediate

abduction is not materially different to waiting outside a person’s house for an opportunity to abduct a victim.

[34] Second, this Court noted in Harpur that “[p]ractical considerations cannot be ignored”.18 If the police had been in possession of the information revealed by their investigation and had followed Mr Johnston to the garden, it would have been quite impractical for the police to have to wait until Mr Johnston tried to enter the sleep out before acting. By that stage there would have been considerable risk to the complainant. Moreover, in itself, the act of attempting to enter would be just as

probative of burglary as it would be of attempted sexual violation. Accordingly, if presence in the garden is not a proximate enough act, entering the property would similarly be insufficient. Proximity would only be established if Mr Johnston actually approached the complainant. That, however, is an even more impractical length of time to wait before allowing the police to intervene.

[35] We therefore do not uphold Mr Johnston’s first ground of appeal.


Attempt without intention to carry out sexual violation on the night in question?


[36] The jury were directed in the Judge’s summing up and question trail to

answer the question:

Are you sure (that is satisfied beyond reasonable doubt) that the accused was present with the intent to sexually violate the occupant of the sleep out – that is to have sexual connection with her, without her consent and without any belief on reasonable grounds that she would consent.

[37] The Judge went on to explain in the summing up:19

[23] Intent means simply the purpose or object that Mr Johnston had in mind. So you need to be sure that, when he was in [the Ws’] back garden on the evening of 19 July, he was there with the purpose or object of committing sexual violation either that evening or shortly after that evening. I’ll come back to that point in a moment.

...

[25] Before I turn to the evidence, I need to make this point very clear to you. The question asks you whether you are sure that Mr Johnston was present at [the Ws’ address] on the evening of 19 July 2010 with the intent of committing sexual violation against the occupant of the sleep out.

[26] That would include:

(a) Being present in the back garden with intent to commit the act then and there; or

(b) It would also include being present in the back garden with the intent to commit the act either that evening or shortly thereafter. So it will include (as it was described in another case) “reconnoitring the place contemplated for commission of the crime” – but it’s not just reconnoitring. It has to be reconnoitring while holding, while he’s present there on the night of 19 July, while holding the intent to sexually violate the occupant either then or shortly thereafterwards. So the intent has to be present on the night even if the intention is to sexually violate shortly after that night. Is that clear? All right.

[27] So you need to bear that point in mind when considering submissions that sexual violation was for instance improbable that night because of timing, or the absence of particular equipment such as duct tape, or the location of the car ...

[28] So the issue for you to focus on is: what was Mr Johnston’s intent while he was in [the Ws’] garden? Are you satisfied beyond reasonable doubt that it was to commit sexual violation against the occupant, either that evening or shortly thereafterwards. He must have had that intent while he was at [the Ws’] garden.

...

Submissions for Mr Johnston

[38] Mr Horsley submitted that the Judge’s direction that Mr Johnston could have intended to commit the offending shortly after the night of 19 July was a significant change to the Crown and defence cases. This change effectively nullified the defence. Up until that point the Crown and defence had both advanced their cases on the basis that Mr Johnston entered the property on 19 July in order to carry out the offending that night. The Crown case had been that his sole intention in entering the property was to sexually violate W. The defence had built its case in response, contending that the circumstances surrounding the property and the timing of the events made it implausible that Mr Johnston was going to carry out the offending that night. Instead, the defence contended that the circumstances and timing were

consistent with an attempted burglary. By suggesting that Mr Johnston could have intended to actually commit the offending on another evening, the Judge rendered the circumstances and timing of the entry into the property highlighted by the defence irrelevant, which significantly undermined the defence case.

[39] Moreover, the direction meant that the Judge’s conclusion that entering the property was sufficiently proximate had to be revisited. If there was no intention to carry out the offending that night, the act was an even more distant step from committing the offence. The jury were given no assistance on what “shortly thereafterwards” meant. Accordingly, the misdirection incorrectly removed the need for the actus reus to be “immediately connected” with the intended criminal act, a

requirement that was set out in Harpur20 and recently emphasised by this Court in

Shadrock v R.21

Crown submissions

[40] Mr Mander submitted that the Judge’s direction was consistent with Harpur and the American Model Penal Code, which provides that it is sufficient for an offender to “lie in wait, search for or follow the contemplated victim of the crime” or “reconnoitre the place contemplated for the commission of the crime”. Mr Johnston’s case contained both these elements.

[41] Mr Mander submitted that no miscarriage had occurred because: (a) No issue was taken with the summing up at trial.

(b) Counsel for Mr Johnston would have been alerted to the fact the Judge could sum up on the basis he did from submissions made by the Crown in opposition to an application for discharge under s 347 that the Judge heard on the third day of the trial. The Crown submissions on that application specifically referred to the Crown view that an attempt to commit sexual violation could have occurred if the sexual violation was to occur at a later time and the offence that night was

“scoping” the property to facilitate a later sexual violation.

(c) The Crown closing left open the possibility that Mr Johnston could have been on the property with the intent to commit the sexual violation at a time in the near future and may have only been scoping the property, because in the closing the prosecutor stated:22

[80] That is a summary of the evidence on which the Crown says you can be quite sure that Mr Johnston’s intent was sexual violation – not stealing. And that he was in [the Ws’] back yard as a concrete step in the final planning or the final execution of the sexual violation.

Discussion

[42] We agree with Mr Horsley’s submissions that the direction in the summing up that Mr Johnston could have intended to carry out the offending after the night of

19 July was a significant deviation from the Crown and defence cases. Introducing the possibility that the offending may not have been intended to occur on 19 July made the Crown case much stronger, as it nullified the defence’s identification of features of the evening of 19 July that made it implausible that a rape was to occur that night.

[43] Although the passage at [80] of the Crown closing can possibly be read as suggesting that the Crown case was that Mr Johnston could have intended to commit the offending another night, it is at best equivocal. It relies solely on the prosecutor’s undeveloped submission that Mr Johnston’s presence in the back yard on the night of

19 July was “a concrete step in the final planning” of the sexual violation. The clear implication from other parts of the Crown’s closing, however, is that the Crown alleged that the offending was to occur that night.

[44] The Crown prosecutor said early in his closing that:

[4] On the 19th of July last year Mr Johnston was disturbed by [Mr W] in their rear yard, close to the sleep out. It was only by chance that [W’s father] noticed the intruder there. It was good fortune that led [Mr W] to go to the wood pile at that time.

22 Emphasis added.

[5] Mr Johnston had gloves, a beanie and a torch with him – similar items to those he had with him when he raped his first victim in 1993.

[6] It is open to you, and I will discuss this later in my closing, to conclude that he also had the garden fork with him in the rear yard of [the Ws’]. To use as a weapon to threaten [W].

[45] The clear implication from this passage is that Mr Johnston was there to rape W that night. He was armed and had similar items to when he last committed a rape. It was “fortunate” Mr W went to the wood pile as his daughter was in imminent danger. If the Crown case was that Mr Johnston was just reconnoitring, there would have been no need to emphasise these points in this way.

[46] The prosecutor also suggested that the reconnoitring of the property had already taken place, noting:

I am now going to review the pieces of circumstantial evidence from which you are entitled to infer that the accused had already reconnoitred [the Ws’] home in advance of being there on the night of 19th July.

[47] The prosecutor also suggested that the date of the offence was connected with W moving back into the sleep out. He said “[W] moves back into the sleep out on the 12th of July and he’s in their back yard on the 19th”. The implication is that with W moving back into the sleep out, Mr Johnston moved from reconnoitring to carrying out his plan.

[48] The prosecutor went on to say:

... What was Mr Johnston doing before entering [the Ws’] property on that

Monday night the 19th of July last year?

[71] Six cigarette butts were found on the driveway ... It is a logical and reasonable conclusion that the six cigarette butts that Mr Johnston left on this side of the fence were left by him when he was standing there in the dark, keeping watch on the front door of [the Ws’] house. From there he could see the light on in the lounge. A cold winter’s night. Not much happening until [W] goes out to the sleep out, during Campbell Live. He doesn’t know what time the girl is going to go to the sleep out. He’s waiting there. Smoking cigarettes – six cigarettes.

[72] Why is he waiting there smoking cigarettes if his intention is simply to burgle the property to steal from it? What has happened that makes him go over the fence into [the Ws’s] property and into their rear yard? Isn’t it the fact the girl has now left the main house? She’s now in the sleep out. Isn’t that what makes him move from there into [the Ws’] back yard? Isn’t that

what he’s been waiting for while he’s been out there in the cold watching the

house, smoking his cigarettes?

[49] The prosecutor then referred to where on the property Mr Johnston was found and said:

[75] What was he doing there? He was approaching the sleep out ...

...

[77] You can be sure that Mr Johnston was there where he was ...

because his intention was sexual violation not stealing.

[50] Despite the Crown’s earlier submissions on the s 347 application that “scoping” the property could constitute the attempt, we think it was clear from the passages above, especially the last two, that the Crown case was that Mr Johnston was caught when he was about to enter the sleep out to commit the offending. The Crown’s alternative “scoping” theory was not clearly put to the jury. The Judge therefore ought not to have suggested that the jury could find Mr Johnston guilty if they were satisfied that he was intending to carry out the offending on another night. We recognise that the prosecutor’s failure to articulate clearly the scoping theory in closing, despite having made submissions to the Judge on that basis, placed the Judge in a difficult position.

[51] The defence case responded to the Crown case. The defence closing stressed the implausibility of Mr Johnston intending to commit a rape when he was found given that it was 7:30 at night, the family was home, and the curtains were open. To abduct W to carry out the rape, he would have had to take her past the open curtains. Also, his car was parked some distance away, meaning he would have had to pass several other homes.

[52] The Judge’s direction therefore put before the jury an alternative basis for convicting Mr Johnston that had not been squarely put in the closing addresses. This effectively sidestepped the defence case.

[53] Moreover, we do not think the passages from the American Model Penal Code should be taken to mean that merely reconnoitring a property is enough to constitute an attempted sexual violation. The passages referred to by the Crown are

in our view coloured by the reference to “lying in wait”. If a person is reconnoitring with a view to finding an opportunity to commit the offence then and there, that would be immediately connected to the commission of the offence, and so sufficiently proximate to constitute an attempt. Reconnoitring simply to gather information is not, however, sufficiently proximate. Gathering information falls within the ordinary meaning of a preparatory step, rather than a step in the actual commission of the offence.

[54] The reference in Harpur to “shortly thereafter” needs to be read in the factual context of that case where the implementation of the intent was imminent. As Mr Mander acknowledged, an intent to commit the rape days later would not have been sufficiently proximate; it had to be established that Mr Johnston had “crossed the Rubicon”. In Harpur the appellant was awaiting the delivery of children who he planned to immediately abduct. This Court in Harpur also held that the actions of

the respondent in R v Wilcox,23 who was armed and travelling by car towards a bank

to commit a robbery when he was apprehended would constitute an attempt.24 Here the jury needed to be satisfied that the offending was similarly imminent, that is, that Mr Johnston was in the garden on the way to the sleep out to rape W just as the defendants in Wilcox were in their car on the way to rob the bank.

[55] The Judge’s direction that the jury could return a guilty verdict if sure that Mr Johnston intended to rape W “shortly after that night” was therefore erroneous for two reasons. First, the Judge’s use of different expressions would have created confusion as to how near in the future Mr Johnston had to intend to actually carry out the offending in order for the jury to find him guilty of attempted rape. The Judge said that the offending could have occurred: “either that evening or shortly after that evening”; “either that evening or shortly thereafter”; “then [while Mr Johnston was on the property on 19 July] or shortly thereafterwards”; and “shortly after that night”. Second, the Judge’s instruction that the jury had to be satisfied Mr Johnston had the requisite intent “either that evening or shortly thereafter and to “bear that point in mind when considering submissions that sexual

violation was ... improbable that night” suggested that the jury could find

23 R v Wilcox [1982] 1 NZLR 191 (CA).

24 See the discussion of R v Wilcox in R v Harpur, above n 5, at [20]–[37].

Mr Johnston guilty even if they were not satisfied he intended to carry out the offence on the night of 19 July.25 If Mr Johnston did not intend to commit the offence that night, however, the commission of the offence would not be imminent in the sense envisaged by Harpur. Mr Johnston’s reconnoitring of the property was not in itself sufficient to constitute an attempt. To the extent the Judge’s ruling reflected the Crown’s submission at trial that “scoping” the property to facilitate a later sexual

violation constituted an attempt, it was incorrect. If the Crown could not establish an intent to carry out the offending on the night Mr Johnston was found in W’s garden, it would be inappropriate to speculate on what could happen on subsequent nights.

[56] Accordingly, we agree with Mr Horsley’s submissions that the Judge’s direction meant that his decision that Mr Johnston’s conduct was sufficiently proximate ought to have been revisited. The Judge ought to have concluded that being present on the property without an intent to commit the rape that night was not a sufficiently proximate act to constitute an attempt, and therefore should not have been left to the jury.

[57] The error in the summing up amounts to a miscarriage of justice. Given that it effectively took away the ability to offer an effective defence it may also have made the trial unfair.

[58] It is not necessary to decide whether the Judge’s error led to a miscarriage of justice or an unfair trial as this is not a case where the proviso can be applied. This Court cannot exclude the possibility that the jury convicted on the basis that Mr Johnston, although not intending to actually carry out the offending when he was at the address on 19 July, intended to come back and do so on another night.

[59] A guilty verdict reached on that basis would have been illegitimate for two reasons. First, the jury was effectively asked to convict on a basis on which Mr Johnston had no opportunity to provide a defence. Second, the alternative basis for a conviction suggested by the Judge did not in law amount to a sufficiently

proximate act to constitute an attempt. It follows from the second reason that the



25 At [23], see above at [37].

Crown’s arguments that the defence was aware of the approach the Judge might take are irrelevant – that approach was not open as a matter of law.

[60] We therefore uphold Mr Johnston’s second ground of appeal.

Admissibility of Crown propensity evidence from Mr Anderson and

Mr Braddock


[61] The propensity evidence of Mr Anderson and Mr Braddock was admitted pursuant to a pre-trial ruling of Ronald Young J.26

[62] Ronald Young J first considered whether the evidence had probative value in relation to an issue in dispute. He held that the evidence tended to show Mr Johnston had a propensity to have the intention of sexually violating young women.27 He recorded that the defence opposed the admission of Mr Anderson’s evidence (relating to a planned bank robbery and rape) on the basis that it was pure fantasy and so of no probative value.28 The Judge rejected the submission, holding that the plan was detailed, and that there was no evidence it was simply bragging or “jailhouse talk”.29 In particular the Judge noted Mr Johnston was alleged to have written down a list of items necessary to carry out the plan.30

[63] The Judge concluded that Mr Braddock’s evidence had probative value in relation to the issue in dispute as it related to sexual interest in teenage girls and much of it related specifically to kidnapping and sexually violating young girls.31

[64] The Judge then turned to weighing the probative value of the evidence

against its prejudicial effect. He considered the evidence of Mr Johnston’s previous

convictions together with Mr Anderson and Mr Braddock’s evidence.






26 R v Johnston, above n 2.

27 At [35].

28 At [44].

29 At [45]–[46].

[65] The Judge first noted that the rapes occurred in 1993 and 1994.32 The discussions with Mr Anderson were over some months in 2006 and the discussions with Mr Braddock were in 2009.33 The Judge held that the frequency of the acts alleged were significant, although there was a substantial gap from 1994 until

2006.34

[66] The Judge then held that the extent of similarity between the propensity evidence and the circumstances of the offence was high:35

The proposed propensity evidence relates to sexual assaults on women mostly young women in their own house or taken from their own house. This encompasses both the accused’s actions and thoughts ... [The evidence] relates to sexual attacks or intended sexual attacks on women typically in their own home.

[67] The Judge noted that the number of people making allegations, four (the two rape complainants plus Mr Braddock and Mr Anderson), was significant.36 There was no evidence of collusion or suggestibility.37

[68] The Judge considered there was a “moderately high” degree of unusualness about the proposed evidence.38 It all involved sexual violence towards women, it was typically towards young women and mostly it began in their home.39 Much of it also involved a fixation with teenage girls and a desire to kidnap and rape teenage girls.40 Often it involved breaking into a private home.41

[69] Accordingly, the Judge concluded that the probative value of the evidence was high.42





32 At [51].

33 At [51]–[52].

34 At [52].

35 At [53].

36 At [54].

37 At [55].

38 At [56].

39 At [56].

40 At [56].

[70] The Judge considered that any possibility of illegitimate prejudice could be dealt with by a jury direction.43

Submissions for Mr Johnston

[71] Mr Horsley submitted that the evidence of Mr Anderson ought not to have been admitted because:

(a) The discussion took place three years before Mr Johnston’s release from prison and four years before the present offending. Therefore, the evidence was not sufficiently temporally connected to the present offending to prove Mr Johnston’s intention in the present offending.

(b) The offending described in the discussions was dissimilar to the present offending. It involved an elaborate plan to commit an aggravated robbery of a bank by blackmailing the bank manager and kidnapping, raping and killing the bank manager’s daughter. There was no evidence of a plan to kidnap in this case, no accessible getaway vehicle and no associated offending. Compared to being found unlawfully on a property four years later, the prejudicial effect of the evidence far outweighed its probative value.

(c) The evidence was unreliable. Mr Anderson raised his allegations in response to a threat from Mr Johnston. The plan was so bizarre it had to be fantasy.

(d) Further prejudice occurred when the evidence was elicited. At trial, the Crown adduced a list written by Mr Johnston that the Crown alleged was a list of items necessary to carry out Mr Johnston’s plan to rob a bank. The Crown obtained permission to lead evidence of two names that were on the list. A detective gave evidence that the names were of a prison psychologist and of the complainant from Mr Johnston’s 1994 rape conviction. The evidence about the names

was not relevant and there was a risk the jury would consider the 2006 discussions to be linked to the 1994 rape or that Mr Johnston had a continuing obsession with the previous complainant.

[72] Mr Horsley submitted that the evidence of Mr Braddock ought to have been ruled inadmissible because:

(a) the discussions were eight months before the offending;

(b) a general fascination for teenage girls has little probative value in the context of a charge of attempted sexual violation; and

(c) the plan to kidnap and rape was markedly different to the present offending as there was no evidence of a plan to kidnap in the present offending.

[73] Mr Horsley submitted that the propensity evidence assumed “enormous importance” at the trial as there was no evidence of any plans to offend. Mr Johnston was convicted almost exclusively on the basis of propensity evidence. Given the importance of the propensity evidence, the lack of a temporal connection or similarity to the present offending, and the unreliability of the witnesses, the risk of illegitimate prejudice far outweighed the probative value of the evidence.

Crown submissions

[74] Mr Mander essentially supported the reasoning of the Judge. In respect of Mr Anderson, he noted that this Court has held that significantly longer periods of time between propensity evidence and current offending have been acceptable and not necessarily reduced the probative value of propensity evidence.44

[75] Mr Mander submitted Mr Anderson’s evidence was reliable and its reliability was evidenced by the list of items Mr Johnston had written. The list had come to light because Mr Anderson gave it to prison authorities. At trial Mr Anderson gave

evidence that the list was a list of items Mr Johnston wanted Mr Anderson to obtain for the bank robbery they had talked about. The defence contended that the list was simply a list of items from a movie that had been played in prison. The reason the Crown adduced evidence about the two names on the list was to counter the defence’s explanation for the list. The evidence was therefore relevant to rebut the defence explanation for the list and showed that Mr Anderson’s evidence was reliable. Moreover, evidence of the 1994 rape was already before the jury so Mr Anderson’s evidence did not add significant prejudice.

[76] As for Mr Braddock’s evidence, Mr Mander submitted that it was very recent and was highly probative of the issue of whether Mr Johnston intended to sexually violate the 16 year old complainant in the present case.

Discussion

[77] We agree with the approach of the Judge and the Crown submissions.

[78] First, the temporal connection is very strong. Mr Braddock’s evidence shows that three years after the discussion with Mr Anderson, Mr Johnston still regularly talked about having an intention to rape a teenage girl. If the intention lasted or recurred over three years, there is a good chance it lasted another eight months.

[79] Second, Mr Anderson and Mr Braddock’s evidence is evidence not just of Mr Johnston’s past behaviour, but of his future intentions. In combination with the convictions, it is highly probative of a tendency to intend to commit rapes on teenage girls. The factors identified by Ronald Young J take Mr Johnston’s state of mind out of the category of offending merely of the kind alleged. The moderate degree of unusualness combined with the close temporal connection and the fact the evidence of the propensity comes from four different sources means the evidence has high probative value. The reliability of Mr Braddock and Mr Anderson’s account was an issue for the jury.

[80] Third, there is no illegitimate prejudice in admitting Mr Braddock and

Mr Anderson’s evidence. Parts of the evidence that would have caused illegitimate

prejudice were excised by the Judge. Mr Johnston makes no challenge to the admissibility of the convictions for rape. If the jury can be trusted not to engage in an improper reasoning process with respect to the convictions, there is no reason why the jury cannot be trusted to engage in a proper process with respect to evidence of planned offences. In other words, the evidence does not add significantly to the risk of prejudice associated with the admission of the convictions, which Mr Johnston is prepared to accept.

[81] Fourth, we agree with Mr Mander’s submission that Mr Anderson’s evidence was sufficiently reliable for it to go to the jury. Although Mr Johnston had an innocent explanation for the list, whether that explanation ought to be accepted was a jury question. We also agree that the Crown was entitled to adduce evidence on the identity of persons included on the list. The evidence was clearly relevant to rebut the defence contention about the nature of the list. We do not agree that there was any risk of illegitimate prejudice arising out of the evidence about the names on the list as Mr Horsley suggested. It was clear from the Crown closing and summing up that the relevance of that evidence was to show that the list could not have been a list of items from a movie. Any prejudice caused by the evidence was entirely legitimate.

[82] We therefore do not uphold Mr Johnston’s third ground of appeal.

Amendment of the indictment


[83] Mr Horsley submitted that a miscarriage of justice occurred when the Crown was allowed to amend the indictment by removing counts of burglary and possession of instruments for burglary from the indictment. He then submitted that given the defence case was that Mr Johnston was there to commit a burglary, the “jury were faced with the unenviable prospect of acquitting a clearly guilty person if they found the Crown had not proved its case”. This put undue pressure on the jury to convict.

[84] As Mr Mander pointed out, however, the submission assumes that the jury would ignore the Judge’s directions to put aside prejudice and sympathy. It also assumes the jury would ignore the clear instructions on the question trail that if they

were not satisfied beyond reasonable doubt on any elements of the offence they were to acquit. This Court has consistently emphasised that jury directions must generally be assumed to be followed and that only exceptionally will the Court find that a miscarriage of justice has occurred because jury directions might not have been followed.45 There is nothing exceptional about the circumstances of this case justifying a finding of miscarriage on this ground.

[85] As Mr Mander pointed out, this Court held in Haimona v R:46

The contents of the indictment are a matter for the Crown prosecutor. The Court will not lightly interfere with the exercise of the prosecutor’s discretion as to the counts to be included.

[86] There was nothing in this case approaching the threshold where the Court

could interfere with the prosecutor’s decision.

[87] We therefore do not uphold Mr Johnston’s fourth ground of appeal.

Defence propensity evidence


[88] It is convenient to deal with Mr Johnston’s fifth and sixth grounds of appeal

together.

[89] Mr Horsley submitted that all of Mr Johnston’s previous convictions for burglary and other property-related offences ought to have been admitted into evidence. As noted above, only convictions relating to residential burglaries were admitted.47

[90] Mr Horsley submitted that although the decision to restrict the propensity evidence to residential burglaries did not amount in itself to a miscarriage of justice, the combined effect of the ruling and certain passages in the Crown closing and the

Judge’s summing up led to a miscarriage of justice. In the passages Mr Horsley



45 Ngati-Check v R [2011] NZCA 543 at [35]; Weatherston v R [2011] NZCA 276 at [24]; Lawson v

R [2012] NZCA 540 at [48]–[52].

46 Haimona v R [2011] NZCA 375 at [12].

47 At [11].

complained about, it was alleged that the prosecutor equated burglary with entry onto the property to commit sexual violation.

[91] Mr Horsley referred to how, after describing the facts of the previous rape convictions, in which Mr Johnston entered the complainants’ homes, the prosecutor said “that was a burglary”. The prosecutor then said: “These two intruder rapes are the last two burglary convictions Mr Johnston has. Burglaries to commit intruder rapes”; and “Mr Johnston has a propensity to burgle homes with the intention of sexually violating the occupants”.

[92] Mr Johnston also complained about the following passage in the Judge’s

summing up:

People tend to think that burglary is about stealing. It often is, but not always. The crime of burglary, and conviction for burglary, involves entry into a building, without authority, with intent to commit a crime. That crime may be theft, but it may be another crime, including a crime against the person. Now you had read to you this morning the burglary convictions that Mr Johnston had compiled. We don’t have the same degree of information about those burglaries as we do in relation to the agreed facts in relation to the 1993 and 1994 rape complaints so all I am saying to you is that limits, just to a margin, the usefulness of that evidence as propensity evidence. Because of course you will need to consider such similarities when you are looking at propensity evidence.

[93] Mr Horsley submitted that this passage, combined with the Crown’s closing,

put a “sexual taint” on all the burglary convictions that were before the jury.

[94] We agree with Mr Mander’s submissions that the passages do not have the effect contended for by Mr Horsley. The passage from the Crown closing focuses solely on the 1993 and 1994 convictions. The prosecutor simply and accurately identified Mr Johnston’s propensity, present in the 1993 and 1994 convictions and allegedly evidenced in the present offending. The propensity was to enter a house and commit a rape, as opposed to say, abducting women running through a park, or attacking women on the street. The Judge’s direction merely defined burglary and correctly noted that because there was little information on the circumstances of the other burglaries, their value as propensity evidence was limited.

[95] Furthermore, neither passage could have had much impact on the jury’s decision. It was clear Mr Johnston had both a propensity to burgle with intent to take property and a propensity to burgle with intent to rape. The question for the jury was not to decide whether he had one or the other propensities, rather the question for the jury was which of the two options was Mr Johnston attempting on

19 July? The answer to that question depended on the jury’s view of events on the night in question, not Mr Johnston’s prior convictions.

[96] We therefore do not uphold Mr Johnston’s fifth and sixth grounds of appeal.


Result


[97] Having upheld Mr Johnston’s second ground of appeal, we allow his appeal

and order a retrial on the charge of attempted sexual violation.

[98] There is an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of the retrial. Publication in law report or law digest is permitted.






Solicitors:

Public Defence Service, Wellington for Appellant

Crown Law Office, Wellington for Respondent

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