R v Rajsic [2012] NZHC 2681 (11 October 2012)

Last Updated: 1 March 2013

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

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-2810 [2012] NZHC 2681

THE QUEEN

v

_{NIKOLA RAJSIC}

Hearing: 11 October 2012

Appearances: S Wimsett for the Crown M Mortimer as Amicus The Accused in person

Judgment: 11 October 2012

ORAL JUDGMENT OF PRIESTLEY J

_{(Section 9 Criminal Procedure (Mentally Impaired Persons) Act 2003)}

Counsel/Solicitors:

S Wimsett, Crown Solicitor, Auckland. Email: [e-mail]

M Mortimer, Barrister, Auckland. Email: [e-mail]

R V RAJSIC HC AK CRI-2012-004-2810 [11 October 2012]

[1] What is currently before me are procedures under the Criminal Procedure

(Mentally Impaired Persons) Act 2003.

[2] The accused, Mr Rajsic, was to be tried earlier this week on an indictment which alleged against him assaulting a complainant with intent to sexually violate her under s 129 of the Crimes Act 1961. An alternative charge was indecent assault laid under s 135.

[3] At various stages earlier this year legitimate concerns were raised about the accused’s mental state. I note that in the Court of Appeal judgment of R v McKay[1] the Court has leaned in what it described as a “diffident” way to the Act’s procedures being triggered if an accused, his counsel, or the Crown raise questions about an accused’s fitness to stand trial (at [74]).

[4] In this case Mr Rajsic did not retain counsel. Concerns have indeed been expressed by Crown counsel and by Ms Mortimer, who has assisted the Court as amicus.

[5] These concerns were clearly echoed by the Court. On 18 September 2012

Heath J referred to various medical issues which had arisen and directed that the accused be examined by a psychiatrist, Dr Nuth. Dr Nuth’s report has come to hand but I do not need to refer to it at the moment.

[6] Section 9 of the Act refers:

9 Court must be satisfied of defendant’s involvement in offence

A Court may not make a finding as to whether a defendant is unfit to stand trial unless the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.

[7] The focus must therefore be on whether the Crown, in this case, can produce

evidence sufficient to establish that the accused caused “the act” which lies at the

_{centre of the two counts which the accused faces.}

[8] Mr Wimsett, having reflected on the situation, is content for s 9 purposes for the focus to be on the lesser charge of indecent assault.

[9] The complainant, Ms B, is in Australia. Although she was apparently ready to travel for the accused’s substantive trial she was not prepared to travel to New Zealand for the purposes of this hearing.

[10] Thus the evidence on which the Crown relies for s 9 purposes are first, the lengthy transcript of a police interview of Ms B which occurred two days after the alleged event on 14 February 2012; secondly, evidence from Mr Wivell of the ESR relating to DNA analysis; thirdly, the evidence of Senior Constable Grant who carried out a photo montage identification with the complainant. Out of an abundance of caution the Crown also called the officer in charge, Detective Greaves, who has given brief evidence.

[11] As is apparent in s 9, the critical threshold is whether the Crown can prove on the balance of probabilities that the accused caused the act complained of, here – indecent assault.

[12] Although the transcript of the police interview with Ms B runs to some 53 pages, the relevant passages are concise. The alleged offending occurred on a Sunday afternoon or evening 12 February 2012. The complainant was travelling by bus along Dominion Road intending to return to her home. She alighted from the bus. Seconds after she alighted she saw a male, standing, who engaged her in conversation. She was able to give a reasonable description of his appearance. In particular she identified what she called a “very strong European accent”. She did not engage this man in conversation but continued on her way. Suddenly from behind she felt a hand on the small of her back and hands around her hips. She was grabbed and pushed to the concrete. She describes this assailant trying to pull up her skirt. He also tried, so she says, to insert his tongue into her mouth. She managed to knee or kick the assailant in his testicles which was sufficient to enable her to make her escape. She ran in a distressed and panicked state to her home.

[13] In later detail she refers to him rubbing or moving his hands around the bottom of her skirt and also rubbing his hands all over her breasts. She again states he was trying to put his tongue into her mouth at the same time.

[14] The complainant was interviewed by the police later that evening. They took two swabs from her lips (one wet and one dry) to assist with possible DNA analysis.

[15] Five days later (17 February), the accused came to the attention of the police as a result of a totally unrelated matter. A police officer, who had initially apprehended him, considered he might have met the description of the assailant whom the police were searching for in respect of the 12 February incident. That description, coupled with police intelligence information about the accused, rapidly led to him being regarded as a suspect. During the same timeframe that the accused was being interviewed by the police, Senior Constable Grant was given a photo montage of eight photographs. She went to interview the complainant who, after looking at the photographs, identified (within approximately two minutes) the accused as the person who had assaulted her. The photo montage does not contain any identifying details. Of course it does not contain the accused’s name. Of the eight photographs (the accused’s photograph being number six of eight) there would be nothing to point the finger at the accused as being the suspect although Senior Constable Grant knew that he was the suspect when she sallied forth.

[16] I have seen the photo montage. Quite remarkably they are all photographs of elderly males born between 1937 and 1942. The accused’s date of birth is February

1942. Of the eight photographs the accused is the youngest. Three or four of the photographs show faces which are of the same general description of the accused. All are of European ethnicity.

[17] The DNA analysis of a swab showed a mixed DNA profile. At least one of the profiled DNA was a male. There was a subsequent sample taken from Ms B. There were 30 points of identity. The evidence from the ESR witness, Mr Wivell, was that there were some 30 matches.

[18] Some months later (September) the ESR revisited the samples, this time armed with a DNA sample taken from the accused. There was clearly no attempt made, and understandably so, to obtain an individual DNA analysis of the accused’s DNA. Given that only a mixed profile was available this would have been impossible. However, the statistical analysis was that, so far as the combined lip swabs were concerned, it was at least 2,000 million times greater that DNA was recovered from lip swabs originating from the complainant and the accused rather than from the complainant and some other person. That likelihood, as is the case in DNA analysis in New Zealand, relates to a sampling of the general New Zealand population at large.

[19] The accused, in a polite but unfocused way, has asked a number of questions and made a number of comments. One possible issue raised by him was that Senior Constable Grant would have identified him to the complainant before or during showing her the photo montage. I am satisfied that did not occur. Certainly when he was photographed in the police station on 17 February 2012 the accused was wearing a quantity of distinctive jewellery (rings and a neck chain). I note, however, that the photograph of him in the photo montage, which appears to have been taken on 11 November 2011, has his neck free from any jewellery.

[20] Returning to the requirement of s 9, I do not intend to embark on a lengthy analysis of how that provision should be interpreted and what needs to be proved. The law, as is apparent from the Adams commentary is unsettled. Should there be proof only of the commission of physical acts which comprise the actus reus of the offence? Is it necessary to establish the specific mental elements so far as the offence is concerned (in this case I suspect that absence of consent on a complainant’s part and absence of a reasonable belief on the accused’s part would be critical)? Or is it enough to show that the “act or omission” described something which is broadly unlawful and might constitute an element of the offence (s 135 in

this case), rather than all ingredients of the necessary crime?[2]

[21] I have a clear view. Whichever of the three possible routes one might follow

_{it is clear from Ms B’s statement that the assault she describes was unprovoked and}

was frightening to her. There has been no challenge by the accused or by the amicus to Ms B’s evidence being dealt with for s 9 purposes solely on the basis of the interview transcript. I am firmly of the view that even if she was here, her evidence in that regard would not be markedly different.

[22] All that could possibly be involved were she to be cross-examined directly would be the accuracy or otherwise of her identification evidence. That of course is a jury matter. Identification is very important and I remind myself that there have on frequent occasions been unfortunate miscarriages of justice as a result of faulty identification evidence.

[23] But for s 9 purposes, I am not required to consider or apply the higher criminal standard. All that is necessary is to satisfy me on the balance of probabilities that the accused caused the act alleged. I consider the DNA evidence to be compelling. I am satisfied too of the basis of the integrity of the photo montage identification procedure.

[24] Accordingly, for the purposes of the statute, I am satisfied the s 9 hurdle has been easily cleared. The next phase is to look at whether or not the accused is fit to stand trial as required by s 14.

..........................................
Priestley J

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[1] R v McKay [2009] NZCA 378.

[2] See generally discussions in R v Te Moni [2009] NZCA 560 and R v McKay op cit.