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Court of Appeal of New Zealand |
Last Updated: 14 August 2014
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
30 July 2014 |
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Court: |
Harrison, Goddard and Andrews JJ |
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Counsel: |
K H Maxwell for Appellant
K A L Bicknell for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
A The application for an extension of time to appeal is granted.
B The appeal against conviction is dismissed.
C The application for leave to call further evidence is dismissed.
D The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Harrison J)
Introduction
[1] Lance Worters was found guilty and convicted on a charge of sexual violation by rape following his trial before Judge Wilson QC and a jury in the Tauranga District Court. He appeals against his conviction and also applies for leave to call further evidence.
[2] Mr Worters has filed an appeal against the sentence imposed of six years and six months imprisonment.[1] However, Ms Maxwell did not pursue this appeal in written submissions or in argument. We are not satisfied the sentence is manifestly excessive and we dismiss the appeal against it.
[3] In support of Mr Worters appeal against conviction Ms Maxwell advances the single ground that trial counsel erred by failing to call psychiatric evidence, leading to a miscarriage of justice.
[4] Mr Worters’ appeal was filed three weeks out of time. Ms Bicknell does not oppose an application for an extension of time given that the delay is relatively short and the Crown is not prejudiced. Mr Worters’ application is accordingly granted.
Facts
[5] We respectfully adopt Judge Wilson’s summary of the relevant facts from his sentencing notes as follows:
[2] The background is that ... there was a social gathering there on the night of the last Wednesday in September at which [“Y”, the victim] attended. ...
[3] You were drinking Steinlager and consuming cannabis. I must say immediately that I reject the proposition that any blame for your offending relates to responsibility by your nephew. There is no evidence that he spiked your drink and this is part of the ongoing problem, that you have not accepted responsibility for your actions. That is something that your counsel wisely said you are going to have to work on.
[4] People had retired for the evening and ... the victim, feeling the effects of alcohol, went to a bed on a mattress on the floor in one room and you went to bed with your partner in a room across the hall. At about six or 6.30 the following morning, you crept into [Y’s] room, removed your pants and underpants and got under the blanket which [Y and her partner] had over them. You then removed her pyjama pants and underwear, lay on top of her and commenced sexual intercourse with her.
[5] When she realised, she said that she had been asleep, partly alcohol induced, deeply asleep, and when she realised it was you having intercourse with her, because she saw your face above hers rather than her partner, she kicked and pushed you off her. As [her partner] became aware of what you had done you pulled your pants up, apologised to him, claiming to be mistaken, claiming that you thought you were with your partner. You went into the lounge and the complainant’s evidence there is interesting because, and I accept it, she said you were sitting on a chair in the lounge with your hands on your head saying, “Sorry”.
[6] Mr Worters has a family history of seizure disorder. In 2001 he developed epilepsy. He has not assisted in stabilising his condition by his failure to comply with medication and also by his alcohol and cannabis abuse. In 2005 a medical specialist identified a clear relationship between Mr Worters’ binge drinking and seizures.
[7] Mr Worters’ disorder is characterised by clusters of seizures and post-seizure confusional states manifested by disorientation and agitation. He has occasionally presented at the emergency department of hospitals with seizures following substance abuse, particularly alcohol, lack of sleep and poor compliance with medication.
[8] Mr Worters’ partner, Marlene Waerea, gave evidence for the prosecution at trial. She confirmed that on the morning of Mr Worters’ offending the two of them had gone to bed between 2 am and 3 am. Between 5.30 am and 6.30 am he started wriggling, giving the appearance of a “turn” and had wet himself. She instructed him to go to the toilet and saw him walk towards the kitchen. She assumed that he was getting himself a drink of water and returned to sleep.
[9] In cross-examination Ms Waerea confirmed Mr Worters’ history of minor and major epileptic seizures and also of unusual associated behaviour. Examples were walking into a cupboard or opening a fridge under the apprehension that each was a toilet, urinating on her mother’s bed or getting into the wrong bed with a male friend.
[10] Mr Worters did not give evidence in his defence at trial. However, Ms Waerea reported Mr Worters’ explanation for his offending as being that he was unable to remember the event or why he acted as he did. He said “I don’t know, I must have been dreaming”. He made a similar statement to a detective.
[11] The prosecution led propensity evidence at trial in an agreed statement of facts. On two previous occasions, in 2000 and 2006, Mr Worters was convicted of sexual offences. The circumstances were summarised by Judge Wilson when sentencing Mr Worters as follows:
[9] The December 2000 offence involved an indecent assault on a girl aged between 12 and 16. You received supervision and suspended jail term for that. A car had run out of petrol. You asked the 16 year old for petrol and you later entered her bedroom, shook her leg to wake her, took your clothes off and got into bed and invited her to have sexual intercourse with you. She said, “No, I’ve got a boyfriend.” You then touched her indecently, kissed her face and breast and touched her in the vaginal area over her clothes.
[10] In the 2006 offence you were sentenced to six months’ imprisonment, following a guilty plea. The facts were that in April 2006 you were with your partner at an address and there was a domestic so you were required to leave and then you returned to find the victim asleep in her bed and touched her indecently, hoping to have sex with her.
Conviction appeal
[12] Mr Worters’ trial counsel, Tony Balme, was alive to the possible defence of automatism available to Mr Worters;[2] that is, that he had sexual intercourse with the complainant without conscious volition. When in a state of automatism, a person acts through his or her body and without the assistance of his or her mind, and without knowledge or memory of the act.[3] The cause may either be a disease of the mind or where the mind is temporarily affected by something such as the influence of a drug or other intoxication.[4]
[13] In order to run the defence of automatism, a defendant must lay a proper evidential foundation. The evidence of a defendant himself or herself will rarely be sufficient without medical evidence pointing to the cause of the mental incapacity.[5]
[14] Mr Balme arranged for Dr Shailesh Kumar, a consultant psychiatrist of Rotorua, to prepare a report on Mr Worters’ condition. Mr Balme’s purpose was to obtain an evaluation of Mr Worters’ epilepsy, drug and alcohol use and consider whether those factors were relevant to his defence. He also requested Dr Kumar to answer a number of questions relating to the incidence of epileptic automatism.
[15] In a report provided to Mr Balme before Mr Worters entered a plea, Dr Kumar advised as follows:
... it is rare for people suffering automatism to carry out complex multi staged actions such as wandering in someone’s room, undressing, slipping under a duvet, undressing another person and then proceeding to engage in sexual intercourse. Typical examples of epileptic automatism may include simple stereotyped behaviour such as gesturing (grasping, nose wiping, lip smacking and chewing movements) are commonly exhibited. Very occasionally, automatisms are prolonged ... or complex actions are carried out. Mr Worters’ behaviour at the material time if driven by EA [epileptic automatism] would be a rare example but still within the realm of possibility.
[16] Dr Kumar reported that:
Mr Worters has a past history of committing sexual offences while intoxicated. His index alleged offence may be considered as a repetition of his past behaviour. The fact that the index alleged offence took place while the victim’s partner slept next to her and with whom he had a sound relationship would argue against the possibility that his actions at the material time would have been premeditated ...
[17] Dr Kumar also advised:
Automatism is sometimes associated with generalised tonic clonic seizures. Automatism is defined as repetitive purposeless movement commonly involving the mouth, chewy motions, lips smacking one or both hands (e.g. fidgeting, picking at clothes). Though uncommon, examples of purposeful complex movements have been reported which include undressing in public and even sexual automatism such as masturbation or pelvic thrusting ... most commonly however automatism is usually simple, stereotyped and repetitive.
[18] In an affidavit sworn in this Court Mr Balme said this:
It was my advice to Mr Worters that we should not call the psychologist to give evidence in respect of epileptic automatism at trial. ... My concern about the calling of expert evidence as to epileptic automatism was that Mr Worters’ conduct involved a loss of memory of events at the immediate time of the offence but he did have memory of events immediately prior and immediately after. Further, Mr Worters’ actions surrounding the offence involved complex motor tasks that the psychiatrist assessed as “rare”. ... On balance I advised that it was better to conduct the case on the basis of the evidence available through the witnesses rather than calling expert evidence. I believe Mr Worters understood and accepted this advice.
[19] Ms Maxwell submits that Mr Balme made a radical error in failing to call Dr Kumar. She submits that without this evidence the jury had no alternative explanation for Mr Worters’ reported behaviour. Instead, it was left with the propensity evidence and actions of Mr Worters which the Crown described as showing his consciousness or cognitive function. She also says there is a real risk that the failure to call Dr Kumar resulted in an unsafe verdict.[6]
[20] We disagree. Mr Balme was in a difficult position. The options available for a tenable defence for Mr Worters were fraught and limited. The Crown case was strong. Taking all factors into account, Mr Balme advised Mr Worters that his defence would not be assisted if he gave evidence himself. Mr Worters accepted that advice which Ms Maxwell does not challenge. As a result, Mr Worters could not challenge Y’s account of events.
[21] Mr Balme identified two available options for Mr Worters’ defence. He could raise the reasonable possibility of belief in consent. Or he could rely on automatism. Ms Maxwell concedes that the two options were mutually exclusive. Both presented obvious problems. But we are satisfied that both were reasonably available.
[22] In this respect, Mr Balme had a proper basis for concluding that Dr Kumar’s evidence was not only unlikely to assist Mr Worters’ defence but, more significantly, might prove counterproductive. Dr Kumar would have had to make two related concessions. One was that the possibility Mr Worters was acting in a state of epileptic automatism was rare. The other was that Mr Worters’ memory of events immediately before and after the offence, but not of the circumstances of the offending itself, was inconsistent with that rare possibility. In our judgment Mr Balme’s advice to Mr Worters not to call Dr Kumar and run an automatism defence was not just open to him – it was also sound.
[23] As it was, evidence of Mr Worters’ epilepsy and his seizure that morning was before the jury. Ms Waerea’s uncontested evidence was that Mr Worters had a turn just before going to Y’s bed and that he often behaved irrationally after a seizure. Moreover, as Ms Bicknell points out, Y said she awoke to the sexual intercourse and although not keen to participate she did not protest because she thought the man was her partner; and that when Y protested, Mr Worters desisted and explained that he thought she was his partner. This evidence was collectively available to support an argument that Mr Worters was genuinely mistaken about Y’s identity and provide a foundation for the possibility of a reasonable belief in Y’s consent. The jury’s adverse verdict reflects its rejection of this defence but does not undermine its availability on the evidence.
[24] We are satisfied that Mr Balme did not err in advising Mr Worters not to lead evidence from Dr Kumar at trial. Once he had advised Mr Worters against running an automatism defence, the medical evidence became irrelevant. And we add our agreement with Ms Bicknell that the absence of Dr Kumar’s evidence, irrespective of Mr Balme’s advice, could not have led to the real risk of an unsafe verdict. Dr Kumar’s opinion that it was highly unlikely Mr Worters was acting in a state of epileptic automatism when having sexual intercourse with Y satisfies us that there was no miscarriage of justice.
Application to lead new evidence
[25] Our rejection of Mr Worters’ appeal against conviction must, as Ms Maxwell acknowledges, adversely affect his related application for leave to admit new evidence in the form of an affidavit from Dr Mhairi Duff, also a consultant psychiatrist.
[26] In accordance with the appropriate test, Ms Maxwell submits that the evidence is credible, is fresh in the sense that it could not have been obtained for trial with reasonable diligence, and that if it is not admitted the safety of the verdict is at risk of a miscarriage of justice.[7] The Crown opposes the application on the ground that the evidence is neither sufficiently credible nor fresh.
[27] In preparation for this appeal Ms Maxwell obtained a comprehensive report from Dr Duff. Dr Duff read the notes of evidence from trial, correspondence and medical notes made following Mr Worters’ conviction. In her opinion there was little evidence to suggest that Mr Worters was significantly intoxicated. His behaviour was more consistent with a confusional state following a seizure in which he was not fully conscious or aware of his surroundings.
[28] In Dr Duff’s opinion a reasonable question also arose about whether Mr Worters knew the nature and quality of his acts or had a competent understanding of the moral wrongfulness of them.
[29] Ms Maxwell accepts that Dr Duff’s evidence is not fresh. Mr Balme obtained a report from Dr Kumar on Mr Worters’ medical condition and in particular the possibility of epileptic automatism before trial. The fact that another expert briefed after the trial adds an opinion to the same but perhaps stronger effect does not render that evidence fresh.
[30] However, what counts decisively against the credibility of the new evidence is Dr Duff’s acceptance that:
It is speculation but within the expected pattern that Mr Worters might have continued to be in a post seizure confused state when he w[a]ndered into the wrong bedroom and proceeded on ‘automatic pilot’ to the assault for which he was charged not fully conscious no longer acting under his voluntary control.
[31] Dr Duff properly acknowledges that her conclusion is based solely on speculation. Her evidence would not assist for that reason. And her opinion that there was a basis for concluding that there were “idiosyncratic but nevertheless reasonable grounds for Mr Worters to believe that his long term partner was consenting to the connection” would be inadmissible. In effect Mr Worters is now seeking to use Dr Duff’s evidence as the foundation for an automatism defence when Mr Balme gave the reasonably available advice to run his defence at trial on a mutually exclusive alternative. Dr Duff’s opinion does not alter our conclusion based on consideration of Dr Kumar’s evidence that the absence of psychiatric evidence in support of Mr Worters’ defence at trial did not cause justice to miscarry.
Result
[32] The appeal against conviction and sentence is dismissed.
[33] The application for leave to call further evidence is dismissed.
Solicitors:
Crown Law Office, Wellington for
Respondent
[1] R v Worters DC Tauranga CRI-2011-070-6055, 23 January 2013.
[2] It was available by virtue of the Crimes Act 1961, s 20(1).
[3] R v Cottle [1958] NZPoliceLawRp 16; [1958] NZLR 999 (CA) at 1007.
[4] R v Cottle, above n 3, at 1007.
[5] R v Burr [1969] NZLR 736 (CA) at 743–745; Bratty v Attorney-General for Northern Ireland [1963] AC 386 (HL) at 413.
[6] Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [63]–[70] and [110].
[7] Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]. See also: R v Bain [2003] NZCA 294; [2004] 1 NZLR 638 (CA) at [18]–[27]; Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25].
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