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THE QUEEN v DEAN FRANK VISKOVICH [2002] NZCA 234 (29 October 2002)

[1] This appeal against conviction has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

The appeal

[2] In October 2001, the appellant was convicted by a jury on one count of sexual violation by rape. He appeals against his conviction on the grounds that the trial judge's summing up was not balanced or fair to the defence. In particular, counsel for the appellant submitted that there were errors in the directions given as to consent and lies.

Relevant facts

[3] The Crown case at trial was that at 8.35 am on 19 November 1999 the complainant, a 30 year old woman from Hong Kong, was waiting at a bus stop on Te Atatu Road in Auckland. She had missed her bus into the city where she attended a tourism course. The appellant drove past the bus stop, stopped, and offered her a ride. As she was running late for an examination, she accepted and got into the car. After driving for a time the appellant stopped to buy petrol, which he asked the complainant to pay for. She did and the appellant then drove along the motorway towards the city. As he did so, he asked the complainant a series of personal questions, culminating in a suggestion that they have sex. He touched the complainant's hand. The complainant pushed his hand away. She felt uncomfortable and told him that she just wanted to get to the city as soon as possible.

[4] The appellant then said that he needed to visit his aunt in Point Chevalier, and turned off the motorway. On Point Chevalier Road, the complainant asked the appellant to stop the car and she got into the back seat so she could avoid his advances. The appellant did not drive to his aunt's house. He drove to the beach where he parked his car and repeated his request that they have sex. He told the complainant that he had had injections and she didn't need to worry about getting pregnant. He then got into the back of the car and began to kiss the complainant on the mouth. He took his pants off, removed the complainant's underwear and began to kiss her vagina. The complainant told him several times to stop and that she didn't want what he was doing. Undeterred, he removed all his clothing and, pinning her with the weight of his body, he penetrated her until he ejaculated. He then dressed himself, returned to the driver's seat and drove to the Point Chevalier shops where he left the complainant on the side of the road. She later realised that she had left her wallet in the car.

[5] Later that day the complainant went to the police. When the police interviewed the appellant he admitted offering the complainant a lift but initially denied having intercourse with her. He admitted doing so after the police informed him that his DNA had been found in seminal fluid located inside the complainant's vagina. However, he maintained that the complainant had consented to have intercourse with him.

Grounds of appeal

[6] The first ground of appeal was expressed as a concern with the fairness of the summing up. It was argued that the judge had directed the jury's attention away from the relevant time for the giving of consent and unfairly advanced the Crown case by explaining or highlighting the complainant's evidence to suggest that consent might not have been present. In particular, five aspects of the summing up were discussed; the directions as to delay in laying a complaint, the demeanour of the witnesses, failure to make an outcry, the complainant's emotional reaction while giving her evidence and the approach taken to the defence position. It was also submitted that the summing up was incorrect in referring to the complainant's wallet being stolen and that references to the appellant's video interview were unfair.

[7] The second ground of appeal relates to the judge's direction as to lies, which is said to have been inappropriate and prejudicial. It was submitted by counsel for the appellant that the lies direction needed to be tailored to the facts and should have clearly stipulated the weight which could be attached to lies. Counsel was concerned that the summing up may have cast doubt on the credibility of the appellant's evidence.

[8] The third ground of appeal concerns the directions relating to consent. On this ground, counsel for the appellant argued that the summing up was conceptually unclear and was of inadequate assistance to the jury.In particular it was contended that the judge failed adequately to explore the issue whether the appellant had reasonable grounds to believe that the complainant consented to intercourse.

[9] Further submissions of counsel for the appellant, dated 4 October 2002, emphasise that that it is the fairness of the composite picture presented by the summing up that is of concern.

Reasons

[10] A summing up focuses the attention of the jury on the matters relevant to their decision and must therefore be fairly balanced and a fair presentation of the case: R v Fotu [1995] 3 NZLR 129. The judicial duty is discharged if the judge, in the words of Lord Goddard CJ in R v Clayton-Wright (1948) 33 Cr App R 22:

..gives the jury an adequate direction on the law, an adequate direction upon the regard they are to have to particular evidence on such matters as accomplices or matters which require by law or practice corroboration, and if he puts before the jury clearly and fairly the contentions on either side, omitting nothing from this charge, so far as the defence is concerned, of the real matters upon which the defence is based.He must give to the jury a fair picture of the defence, but that does not mean to say that he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence which has been given by experts or anyone else.

[11] As this Court has frequently remarked, a summing up should be tailored to the particular case. In this case, the central issues were whether the complainant did not consent to the sexual intercourse and whether the appellant did not believe on reasonable grounds that she was consenting. The evidence of the complainant and the appellant conflicted on this point and it was necessary for the jury to resolve the conflict. The impressions they formed of the key witnesses was obviously of significance. The summing up must be seen in that context.

[12] The directions given on the issue of consent are comprehensive and in accordance with principle. The judge traversed the usual points as to the nature of consent, the standard of proof and the necessity that there be both consent and reasonable grounds for that consent. These directions are clear. He then emphasised that the crucial time for the consideration of consent is at the time the act actually took place and that while a complainant's behaviour before and afterwards may be relevant to the issue, it is not decisive of it. He went on to give directions as to the timing of the complaint and lies, before summarising the cases for the Crown and the defence. It is evident both from the language used and the structure of the summing up that the subsequent directions do not obscure or modify the direction as to consent.

[13] The judge then states that he will give a "brief summary of the cases presented to you by the Crown and the defence" making the preliminary point that he will give the "general flavour" of the submissions and that it is for the jury to attribute weight to the arguments. The appellant's submissions in relation to consent and fairness must be approached on the understanding that the judge structured the summing up, as is customary, to deal with a number of points in turn, and prefaced his summary by indicating that he was reciting the submissions. It is clear that he is not directing the jury in any particular way. The respective cases as to consent are summarised and the judge makes it clear that the jury is the arbiter of fact and is required to determine whether the Crown has made out its case. Taking the summing up as a whole, we do not consider that it can be said to be unbalanced or unfair. Grounds 1 and 3 of the appeal must fail accordingly.

[14] It was the Crown case at trial that the appellant had lied to the police and presented conflicting accounts of the incident. As credibility was of central importance, a lies direction was appropriate. As is usual the judge told the jury that they must be satisfied that the appellant had told a deliberate lie and, if satisfied that he had done so, be careful about the weight they placed on that. Jurors were also told that a deliberate lie may be regarded as a relevant factor in assessing the credibility of the appellant and were reminded of the defence submissions on this point.Later in the summing up the judge emphasised that the appellant gave the "correct" account of what had happened at the end of the police interview, and had essentially given the same account in court. We find nothing inappropriate or deficient in this aspect of the summing up. The direction is orthodox and appropriate in the context of this case. The second ground of appeal fails accordingly.

[15] As to the composite picture presented by the summing up, we are far from satisfied that it was an unfair or unbalanced summary. The appeal is therefore dismissed.

Solicitors

Nigel Cooke, Auckland for Appellant

Crown Law Office, Wellington for Crown