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THE QUEEN v JAMES ALEXANDER FUREY [2002] NZCA 230 (3 September 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 168/02

Hearing: 26 August 2002

Coram: Anderson J

Williams J

Salmon J

Appearances: W C Pyke for Appellant

A E Kiernan for Crown

Judgment: 3 September 2002

Nature of the appeal

[1] The appellant was arraigned in the High Court on an indictment containing two counts of threatening to kill and 27 counts of sexual offences against a number of young people over a period of 21 years.He pleaded guilty to one count of indecent assault on a boy under 16 and was found guilty by the jury on 13 counts of sexual offences and the two counts of threatening to kill.The jury acquitted the appellant on four further charges of sexual offending and was unable to reach agreement on two counts of sexual violation by rape.The trial Judge discharged the appellant on seven counts in the course of the trial.On 22 March 2002 the appellant was sentenced to one year's imprisonment on each of the two counts of threatening to kill to and to preventive detention on each of the 14 counts of sexual offences which are "specified offences" in terms of s75 of the Criminal Justice Act 1985.The appellant was eligible for preventive detention by virtue of s75(1)(b), having been previously convicted of a specified offence since attaining the age of 17 years.In 1979, when he was aged 22, the appellant was convicted on four charges of indecently assaulting boys under 16.

[2] The appellant seeks leave to appeal against conviction and sentence, having failed for excusable reasons to file an appeal within time.

[3] The grounds of the appeal against conviction, expressed broadly, are that there has been a miscarriage of justice through alleged radical error by trial counsel, the wrongful admission of evidence and misdirection by the trial Judge.

[4] The grounds of appeal against sentence are that preventive detention is manifestly excessive and that a finite sentence, necessarily lengthy, should have been imposed.

Conduct of the trial

[5] The sexual offences of which the appellant was convicted related to seven children.Five were boys aged between four and fourteen at the time of the offences and two were girls aged between four and nine.Some of the complainants were adults when they testified but many were young children at the time of trial.Most gave evidence of the appellant masturbating himself against their feet but there was also evidence of the appellant causing complainants to masturbate him, getting a young boy to stand on the appellant's private parts, masturbating in front of a young girl and sexual violation by oral genital contact.The threats to kill, relating to one of those complainants and to the child's mother, were made by the appellant in connection with the sexual abuse.

[6] Part of the evidence adduced by the Crown was a videotaped interview between the appellant and Detective Constable Craig in the course of which the various complaints were put to the appellant and discussed with him.Certain parts of the interview were edited out in consequence of arrangements between counsel and with the leave of the Court.

[7] Defence counsel at trial, an experienced and well qualified criminal barrister, conducted the defence on what was, realistically, the only arguable basis, namely that there was collusion of a conscious or unconscious nature resulting in similar but unreliable stories by a number of complainants in consequence of it becoming known that the appellant had been convicted of sexual offences, idiosyncratically concerned with indecencies in relation to feet, when he was a young man.This defence necessarily involved disclosure of the earlier offending but it was a tenable albeit difficult tactic with which no issue is taken on this appeal.The appellant himself gave evidence denying all the offences.

Appellants submissions on appeal against conviction

[8] Although a number of grounds are adverted to in the Notice of Appeal only five were pursued, the balance being expressly abandoned.The first ground of appeal is that trial counsel failed to put the case to prosecution witnesses and "to fairly and squarely confront them with it".This ground is elucidated in an affidavit sworn by the appellant who deposes that his instructions to counsel at all times were that he denied all the allegations except count 1, and that counsel was to confront the complainants with his defence of denial. He complains that while counsel, in her cross-examination of the complainants:

focused on inconsistency in their stories, [she] did not directly confront the witnesses with my denials.My position was that these offences as alleged simply did not occur.

The jury therefore were unable to assess the response and reactions of the Complainants when confronted with my defence of denial.The Complainants were therefore not tested in the same way that my evidence was tested under cross-examination.

[9] The next ground of appeal is that prejudicial material appeared in the videotaped interview without proper objection having been made by trial counsel and without proper directions being given by the Judge as to its use.This ground could be characterised as radical error by counsel, wrongful admission of evidence, or error of law by the Judge but ultimately the issue must be whether the presentation of such evidence to the jury has resulted in a miscarriage of justice.

[10] The parts of the interview now challenged on behalf of the appellant refer to the detective's use of words having implications of irony or scepticism.At one point in the interview the detective refers to a boy on a hockey tournament ending up in the same bed as the appellant, being offered a packet of cigarettes by the appellant and "then strangely, he found that you were masturbating yourself with his feet".The appellant's reply to that was "No I don't remember that".

[11] At another point the detective refers to the appellant in these terms. "Surprisingly, you would use the soles of his feet to masturbate yourself with."The appellant replies that he cannot remember that.

[12] Later in the interview the detective says that he can understand why the appellant would be in a position where he would be scared to be truthful.At another point he asks the appellant to explain the coincidences of complaints. At other points in the interview he questions the appellant in mildly ironical terms.

[13] The effect of the impugned passages, in counsel's submission, was to undermine the appellant's credibility by expressions of sarcasm and scepticism.

[14] The third ground of appeal is that inadmissible complaint evidence was presented.The evidence was inadmissible, counsel submitted, because it was not sufficiently recent to be admitted as recent complaint evidence.

[15] In the course of evidential videos child complainants say that they told their grandmother what had been happening.There was similar evidence viva voce before the jury.The children's grandmother gave evidence in chief of asking whether the appellant had interfered with them and one child told her the appellant had done it several times when they were staying at his place in a particular city.At that point the trial Judge intervened and noted in the absence of the jury that the complaints were clearly not recent and the answer was hearsay.The matter was not further pursued.

[16] The fourth ground of appeal is that there was an insufficiency of evidence in relation to three of the counts, that "the verdicts were against the weight of evidence and therefore unreasonable".

[17] The final ground of appeal against conviction is that the trial Judge failed properly to direct the jury as to the use that could or could not be made of the evidence of one particular complainant who was the subject of one count upon which the appellant was discharged in the course of trial.The particular count alleged indecent assault of a boy under 12 years of age by taking hold of the complainant's feet and rubbing them on his penis.This Court was informed that the reason for the discharge pursuant to s347 of the Crimes Act 1961 was a hiatus of evidence concerning the complainant's age at the particular time in circumstances where age was an ingredient of the offence.The present argument seems to be that because the appellant was not convicted in respect of conduct which could be relevant as similar facts, such conduct could not be considered for any purpose.

Crown submissions on appeal against conviction

[18] In response to the appellant's affidavit and pursuant to the appellant's formal waiver of legal privilege the Crown filed with leave an affidavit from trial counsel.Counsel explained that she was careful about asking questions of the complainants which would have the effect of reinforcing the prosecution case by giving witnesses a further chance to say in cross-examination what they alleged in examination in chief.This strategy was informed by counsel's experience in a number of cases involving child complainants.Given the defence strategy, counsel's cross-examination was directed to raising suggestions of invention and to exploit inconsistencies.In respect of one particular witness counsel was influenced by the forcefulness of his testimony and the sympathetic impression he made on the jury.In counsel's view persistent cross-examination would be self-defeating.Generally speaking, cross-examination was conducted in terms of a strategy that was developed in counsel's closing submissions, full notes for which were annexed to her affidavit.

[19] Concerning editing of the videotaped police interview, counsel accepts, perhaps too readily, that one particular section should have been edited out.

[20] As to the hearsay evidence of the grandmother, counsel testifies that she did not object before the Judge intervened because as part of the defence strategy she wanted confirmation that at the time the child spoke to her grandmother the child was aware of allegations in respect of others, such being relevant to the issue of possible collusion.

[21] In answer to the appellant's submissions on this appeal the Crown relied on trial counsel's explanations, submitting in effect that they neither disclosed error nor resulted in a miscarriage of justice.As for not "putting the defence" counsel submitted that it was abundantly clear that the defence theory at trial was a conspiracy or collusion of some sort amongst the complainants who were members of the same family and that the evidence of the complainants contained inconsistencies.For such complainants outside the family the defence was elaboration or fantasising and it was entirely appropriate for trial counsel to conduct cross-examination with a view to exploiting these aspects of the defence theory.It was also abundantly clear that the defence was a total denial of all charges.Whilst none of the complainants was directly confronted with the proposition that in fact the appellant denied each offence, it could not be said that there had been a miscarriage of justice.

[22] Concerning the videotaped interview of the appellant the Crown accepted that the interviewing officer's style was forthright and required a number of excisions from the original interview.Counsel invited this Court to view the impugned portions of videotapes and submitted that the inclusion of those portions has not led to a miscarriage of justice.

[23] Concerning the complaint evidence, counsel for the Crown submitted that it was legitimate for the prosecution to lead from the grandmother evidence of the complaints having been made because these were referred to in the complainants' testimonies.In any event, up to the time the Judge intervened the evidence was unobjectionable and of assistance to the defence case.For the Judge to have drawn attention to the particular material in the summing up would not have been of assistance and overall no miscarriage of justice resulted.

[24] As to whether there was sufficient evidence to support the verdicts in respect of counts 24, 25 and 27 counsel pointed out the evidential basis in the testimony of relevant complainants.In one case, where the particular complainant could not recall relevant events that hiatus was covered by another complainant who observed the incident in question.

[25] As to the efficacy of the testimony of the complainant in respect of whom the count was dismissed, counsel submitted that the Judge dealt adequately with the situation by directing the jury that they were not to be concerned with that count.No miscarriage of justice occurred.

Discussion of appeal against conviction

[26] When considering the complaint that trial counsel "did not put the defence case" it is to be remembered that this is not an example of defence evidence being excluded or depreciated by adverse comment through a failure to comply with the principle commonly known as the rule in Browne v Dunn (1893) 6 R 57, HL.Implications of this rule are that a party should put its case to a witness for another party for comment, where appropriate.At trial the defence was in no way inhibited by any suggestion of breach of that rule.The appellant's grievance seems in essence to be that the complainants, many of whom were children, were not subjected to discomfiture by a confrontational assertion of the accused's manifest denials.But if that perception should be wrong and the appellant's concern is just that he may have suffered some tactical disadvantage from the complainants not being directly challenged with the advice that the appellant denied what they said and they were giving false evidence, then we are far from persuaded that counsel made an error, let alone a radical error, in the conduct of the trial.She was faced with a difficult task in finding a rational alternative explanation for evidence from a stream of witnesses saying that the appellant had obtained sexual gratification by rubbing his genitals against their feet when they were young children.The defence case called for subtlety, not confrontation, particularly where young complainants were involved.Although the point was developed extensively by counsel in his written submissions and at the hearing of the appeal, it is meritless.

[27] Concerning the features of the videotaped interview of which the appellant complained, we record that this Court viewed the relevant parts of the tapes following the closure of argument, in accordance with counsel's invitation.We noted that the appellant seemed entirely relaxed in his speech and demeanour, sometimes smoking and indicating both an ability and preparedness to assert himself when it suited.The particular ground of appeal is advanced, not on the basis of a breach of the Judge's Rules but in terms of the general unfairness said to arise from the impression of disbelief evinced by the interviewing detective.In our view the detective's interviewing style was not such as to inhibit the appellant from expressing himself entirely as he wished and that he proved well able to deal with the situation.That the police officer may have disbelieved him was ultimately implicit in the laying of charges and the occurrence of a trial.Even then there were some counts on which the jury were not prepared to convict.There has plainly been no miscarriage of justice by reason of the impugned aspects of the interview.

[28] We turn now to the evidence relating to complaints.The two child complainants who testified in their evidential video statements and at trial that they had complained of the abuse were not thereby giving complaint evidence in the sense that term is normally referred to as an exception to the hearsay rule.They were simply giving evidence that they had complained, such not being hearsay and being relevant to a potential issue in the trial, namely the fact and timing of any complaint in relation to suggestions of fabrication. As to the grandmother's evidence this was, strictly, hearsay and technically inadmissible.But we have no reason not to accept the evidence of trial counsel to the effect that it was expedient to the development of the defence strategy that the jury should learn of evidence supporting the possibility of collusion.In any event, the detail of what was disclosed was limited and the probative impact on the jury in all the circumstances of the case would have been negligible.We are not persuaded that any miscarriage of justice resulted.

[29] Counsel's submissions concerning the adequacy of evidence conflate two concepts, only one of which is apt.He submitted that the verdicts in respect of counts 24, 25 and 27 were "against the weight of evidence" and were therefore unreasonable.It is of course a ground of appeal, recognised in s385(1)(a) of the Crimes Act 1961 that a verdict is "unreasonable or cannot be supported having regard to the evidence" but there is no recognised ground that a verdict is "against the weight of evidence".If there is sufficient evidence to prove a count then whether any of such evidence should be accepted and what weight it should be accorded is entirely for the jury.The evidence in respect of the particular counts must therefore be examined in light of that principle and not on the speculative basis of its weight.When the transcript is examined in this light the adequacy of an evidential basis for the counts is plain.

[30] The last ground of appeal against conviction relied upon concerns the Judge's alleged misdirection in connection with the testimony of a particular complainant in respect of whom the count was discharged.The allegation concerned another example of what many of the complainants referred to as a "foot job".By the time the Judge came to sum up there were eight such complainants left to be considered but there were other counts of a like nature in which there had been discharges under s347 of the Crimes Act.Relevant similar fact evidence may sometimes be given in respect of offences which have not been the subject of charges or even where an accused has been previously acquitted thereon but, favourably to the accused in this case, the Judge restricted the jury to the counts relating to the eight complainants which were still current at the time of their deliberations.He commenced his summing up with a reference to the most recently discharged count, indicating concern about the nature of the evidence and the way the charge had been laid and directing them that they should not be concerned with it.He reminded them of this a short time later in his summing up and when dealing specifically with similar fact evidence he referred to "the eight complainants".There is no basis for any concern that the jury may have had regard not only to the eight complainants still of current concern but also the testimony relating to any of the accounts on which there had been a discharge.

[31] For these reasons we determine that the appeal against conviction should be dismissed.

High Court reasons for sentence

[32] The High Court Judge had for his consideration a pre-sentence report which assessed the appellant's risk of reoffending as high because he denied all offending, lacked insight into his deviant behaviour and had a low level of motivation to change.The number of victims, their young age and the long period of offending were considered to indicate a predatory paedophile who was a serious danger to public safety.The probation officer could not reconcile an expressed willingness to undertake prison programmes for sex offenders with the appellant's denial of criminality; nor his state of remorse for the victims with his continuing denials.

[33] A psychiatric report prepared for the purposes of a consideration of s75 of the Criminal Justice Act 1985 also noted the appellant's adamant denial that he had committed offences.The psychiatrist considered the prediction of risk of future offending as problematic because the appellant did not have psychiatric symptoms and was not mentally disordered as defined by s2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[34] There were many victim impact statements before the Court.

[35] After referring to the pre-sentence and psychiatric reports the Judge noted this Court's decision in R v Leitch [1998] 1 NZLR 420 and the principles adverted to in that case.As to the nature or scale of the offending, he found that in terms of actual physical violation the case was generally at the lower end of the scale but considerable psychological harm had been done to the victims.The time span of offending covered 21 years and many of the counts, being representative, indicated multiple offending.The victims of sexual abuse were all young, their ages ranging between five and thirteen at the time of the relevant offending.The appellant had manipulated them, bribed them and deceived them.In two cases he threatened to kill.The Judge regarded as questionable whether the appellant was willing to undergo treatment or felt any remorse.The Judge identified periods of offending over the total span of time.There was one offence in 1979.Nine counts related to the period 1985 to 1993 and five counts related to offending between 1997 and 2000. The Judge noted the contents of the pre-sentence and psychiatric reports.He concluded that the prospect of any real benefit from rehabilitative treatment was remote, given the continued denials.Although, in the Judge's view, he would have difficulty in concluding that there was a substantial risk of the commission of a specified risk upon release if regard were had only to the psychiatric report, there were other features which led him to the conclusion that it was expedient for the protection of the public that the appellant be detained for a substantial period.He had regard to the pattern of offending, the length of time and frequency of its occurrence, the complete failure to accept responsibility, doubts over any genuine intention to address and correct problems, the unlikelihood that behaviour would be corrected and the manipulative manner in which the appellant carried out his offences.

[36] The Judge noted that he had considered at length whether the position could be met with a firm, possibly longer finite sentence.Viewing the totality of the offending he concluded that such a sentence would be in the order of at least ten years and that would be insufficient to meet the needs of public interest.He thought there was no real prospect of change, that the appellant had caused enough harm and that the public needed the extra protection of amenability to recall if necessary.

Appellant's submissions in respect of sentence

[37] Counsel for the appellant submitted that a finite sentence, necessarily lengthy, was adequate to meet the case and accordingly a sentence of preventive detention was manifestly excessive.The Judge had emphasised denial of fault but in counsel's submission a long term of imprisonment and reconciliation to conviction could still lead to real rehabilitative hope for the appellant.He submitted that the appellant's acceptance of his offending in 1979 pointed to acceptance of present fault occurring in due course.There had been a guilty plea to one of the counts and an acknowledgement of past fault and the existence of a problem.The appellant was willing to receive treatment, the offending was not at the most serious end of the scale, and the psychiatric report did not involve a prognostication of future risk.

Crown's submissions on sentence

[38] In the Crown's submission consideration of a sentence of preventive detention turns on whether the protective purpose of such a sentence could reasonably be met by an available finite sentence of imprisonment.Counsel are at one on that principle which is well founded on authority.In the present case the Judge was required to deal with an offender who had repeatedly submitted young boys and girls to indecencies over many years, who now showed no remorse and refused to acknowledge his guilt.Indeed there was an impression of inclination to manipulate rehabilitative measures for his own ends to gain parole.There were no indications that the appellant was reconciled to his convictions and no real hope of rehabilitation.In short, the Crown relied on the factors which the Judge noted as informing his decision.

Discussion on sentence appeal

[39] Given the parole provisions applicable to this offender an appropriately lengthy finite sentence would probably result in the appellant being released significantly sooner than if the sentence of preventive detention were to remain.In the case of a finite sentence the appellant would not be susceptible to recall following final release.These differences are important because of real concern in the present case over indications of risk.These are long term paedophilia; the large number of very young victims subjected to degrading and bizarre conduct for the offender's sexual gratification; the lack of insight and remorse, exemplified by even such things as the appellant's complaint that the victims were not challenged directly enough by defence counsel.These matters indicate an intransigence in relation to rehabilitation.

[40] We are not persuaded the Judge was wrong to conclude that in all the circumstances of the case the appellant represents a risk to public safety which could not adequately be met by an appropriately principled finite term of imprisonment.

Result

[41] For the reasons expressed herein the appeals against conviction and sentence are dismissed.

Solicitors:

Crown Solicitors, Auckland