|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of New Zealand |
Last Updated: 29 November 2018
PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF RE-TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA299/03
THE QUEEN
v
A (CA299/03)
Hearing: 4 December 2003
Coram: Tipping J Panckhurst J Salmon J
Appearances: J H M Eaton for Appellant
L M B Lamprati SC for Crown Judgment: 17 December 2003
JUDGMENT OF THE COURT DELIVERED BY TIPPING J
[1] One aspect of this appeal is most unusual, perhaps unique. The appellant was found guilty by a jury in the District Court at Christchurch of sexually abusing his two daughters, O and T. T gave evidence in the usual way in support of the Crown case. O, however, gave evidence that her father had not sexually abused her in any
R V A (CA299/03) CA CA299/03 [17 December 2003]
way. His convictions in respect of her were based on a confession which he had made but later recanted. There is no doubt, as we shall mention below, that a conviction may be based on a confession alone, but what makes this case particularly unusual is the two-fold circumstance that the confession had been recanted and O denied, on oath, that her father had abused her.
[2] The indictment upon which the appellant was tried contained three counts in respect of each girl. In relation to T count 1 charged the appellant, on a representative basis, with indecently assaulting her when she was between the ages of 12 and 16. The jury were unable to agree on this count. Count 2 charged the appellant, on a representative basis, with indecently assaulting T when she was over the age of 16 years. Count 3 charged him, on a single incident basis, with sexually violating T by raping her. He was found guilty on each of those two counts.
[3] All the counts in relation to O were laid on a representative basis. Count 4 charged the appellant with indecently assaulting O when she was between the ages of 12 and 16 years. Count 5 charged him with indecently assaulting O when she was over 16 years, and count 6 charged him with sexually violating O by raping her. The appellant was found guilty on each of these three counts.
[4] The principal ground of appeal in relation to the convictions concerning O, although by no means the only ground, is that the verdicts were unreasonable and not supported by the evidence. There were five other grounds of appeal concerning O, to some of which we will refer in due course. In relation to T, the appellant’s argument is that the numerous problems that existed in relation to the convictions relating to O must be regarded as having tainted the convictions in relation to T.
[5] He also contends that he was denied a fair trial overall and that the convictions relating to T should be set aside as well as those relating to O. There are two further grounds of appeal that concern both daughters. The first is that the Judge misdirected the jury on the issue of consent. The second concerns the adequacy of the Judge’s directions on the subject of the need for separate consideration of the several counts in the indictment. In the event that the conviction appeals are
unsuccessful, the appellant also challenges the sentence of ten years imprisonment which was imposed upon him.
Background
[6] The appellant is the biological father of the two girls. He had little or no contact with them after he separated from their mother in 1986. Contact was, however, re-established in 1996. O was then aged 13, having been born on 31 May 1983 and T was aged 12, having been born on 8 June 1984. The girls began to visit their father during school holidays. O began living with her father shortly after contact was re-established. The Crown’s case was that the offending against O began in January 1997 and continued until July 2001. In January 2001 T also went to live with her father. She alleged that between mid January 2000 and July 2001 he had committed on her the sexual offences charged in the indictment.
[7] An unusual feature of the verdicts in relation to T was that although the jury found established the offending where consent would have been a defence, they were unable to agree on the offending where consent was no defence, ie. that which alleged indecent assault when T was under the age of 16 years.
[8] On 15 July 2001 O gave birth to a child, C. Shortly afterwards T complained to J (O’s boyfriend) and his sister that the appellant had sexually abused her. She also said that her father was doing the same thing to O. T complained to the police on 26 July 2001. The appellant was interviewed on 29 July 2001 and denied T’s allegations. O and C were, however, then removed from the appellant’s house, where they had been living, following intervention by the Children Young Persons and their Families Service (CYFS).
[9] Following the removal of O and C from his house, the appellant went, on 26 September 2001, without any prior warning, to the Christchurch Police Station. He did so at 4.25am and confessed to having sexually abused O, but made no mention of T. He told the police that he had had sexual intercourse with O against her will during 2000 at about the time when C was conceived and that he believed he was C’s father. He was unsure of the details surrounding this act of intercourse with
his daughter and simply said that he had “forced sex on her”. He said that this was the only occasion on which intercourse had taken place between them but that other abuse had occurred by way of inappropriate kissing and touching. He professed to recall four occasions between 1998 and 1999 when he had put his finger inside O’s vagina against her will. He was, however, willing to accept that there would have been more occasions if O said so. At the end of the interview the appellant said “I want this over for [O]. She’s been through hell. Someone’s got to fucking end it for her.” He added “I want this shit with CYFS ended with [O].”
[10] The appellant recanted these admissions some two weeks later and has thereafter continued to deny any offending with either O or T. He told the police that what he had said earlier regarding O was bullshit and that he had made the admissions to keep CYFS off his or O’s back. The irrationality of that proposition is something which we will consider below. DNA tests have revealed that the appellant is not the father of C.
[11] A number of pre-trial applications were made after the appellant had been committed for trial. Given O’s stance that no sexual activity had ever taken place between her father and herself, one of them concerned whether third parties could give evidence of their observations of physical touching between the appellant and
O. The Judge ruled that these witnesses could give evidence of what they saw and when they saw it but that they could not give their opinion as to the nature of the relationship between the appellant and O. An exception to this latter dimension was made in the case of the appellant’s second wife.
[12] The case went to trial on 24 March 2003. The Crown sought to overcome the difficulty posed by O’s stance by contending that the appellant had groomed her to such an extent that she was unwilling to complain about his actions and indeed was prepared to go as far as to deny that any misconduct had occurred. The Crown called six witnesses who described seeing the appellant touching O in what they considered to be a sexual and inappropriate manner. There was, however, no suggestion that this activity was other than consensual on O’s part. The appellant’s second wife gave evidence that he slept in O’s bed and that their relationship was like that of husband and wife. Again there was no suggestion that anything
non consensual had occurred. O was called to give evidence after these witnesses had given their evidence. She stated that her father had never touched her in a sexual manner. She also said that J, her boyfriend, was the father of C.
[13] Evidence concerning the appellant’s confession was then given by a detective. The appellant’s two conversations with the police officers to whom he spoke on 26 September 2001 had in one instance been videotaped. This was played to the jury. The other officer deposed to what the appellant had said. That constituted the evidence against the appellant so far as O was concerned.
[14] T gave her evidence in the ordinary way, describing the abuse which she had suffered at her father’s hands. She also spoke of her father’s relationship with O. J and his sister gave recent complaint evidence in relation to T. They recounted what T had told them about her own abuse but they also referred to what T had said about her father’s conduct with O. This was of course hearsay evidence, not legitimately part of T’s own recent complaint evidence. One of the grounds of appeal which we will be discussing later concerns the prejudicial effect of this inadmissible evidence.
[15] That being the essential background, we now turn to address the various grounds of appeal and counsels’ submissions upon them.
Convictions based solely on confessions – the law
[16] There is no doubt that a confession alone can be sufficient in law to support a conviction: R v Pauga [1992] 3 NZLR 241 per Smellie J; and on appeal (1993) 9 CRNZ 685. In that case the victim could not be identified and the appellant had been charged with raping a person unknown. The case was somewhat different from the present in that there had been no express recantation by the appellant and no denial on oath by the victim. The accused was in effect saying that only the victim could establish lack of consent. Smellie J referred to the decision of this Court delivered by Turner J in R v Lord & Doyle [1970] NZLR 526. There the Court said at 529:
When the commission of a crime has once been independently proved, the confessions of an accused may be excellent evidence against him. And where apart from a confession or other incriminating statement from an accused, no proof is furnished that a crime has been committed, yet sufficiently cogent evidence of some confession or incriminating statement, made in circumstances in which its truth is likely, is produced, such a statement may by itself be sufficient to support a conviction. R. v. Davidson (1934) 25 Cr. App. Rep. 21 is a case that comes readily to mind. But where the fact of the commission of any crime is supported only by something the accused himself has said, that something must be convincingly proved, and it itself must be cogent and satisfactory evidence, before it can be accepted by itself as a foundation of a conviction.
[17] We also note that in R v Cleven CA84/01, 20 June 2001, at pp6-7 this Court cited with approval remarks made by Fisher J in R v Whitu (HC, Rotorua, T1/91, 26 February 1991) which had been referred to by Smellie J in Pauga. This is what Fisher J said after having referred to Lord & Doyle:
It is not the case that in all circumstances a confession standing alone will be insufficient to support a conviction. The larger principle is simply that a case should not be left to a jury where there is no satisfactory evidence upon which an accused could reasonably be convicted. It may be that in a case where the Crown relies solely upon a confession without any independent evidence that a crime has been committed, one would consider the reliability of that confession anxiously before deciding that the case should go to the jury.
[18] In his judgment in Pauga Smellie J mentioned two decisions of the High Court of Australia which are broadly to the same effect as those already cited. Those cases are McKay v R [1935] HCA 70; (1935) 54 CLR 1, and McKinney v R (1991) 65 ALJR
241. Also of relevance is an English decision cited by Smellie J, Porter v Court [1963] Crim LR 39. That was a case in which a journalist had admitted on television and to the police that he had shot deer in a prohibited area without a licence. When he was charged he gave evidence at his trial that what he had said was merely a joke and there was no truth in it. He was convicted and on his appeal the Divisional Court, presided over by Lord Parker LCJ, held at page 40:
... that even if P had not given any evidence the justices could still have convicted him. His own admissions were evidence against him and could not be compared to the retracted deposition of a prosecution witness.
[19] The Lord Chief Justice’s reference to the retracted deposition of a prosecution witness is of some present moment because here the relevant prosecution witness O never made any deposition implicating her father. Her stance
was, as noted above, that he had not committed any crimes in her respect. It may be thought that this situation is somewhat stronger in favour of the appellant than the case mentioned by the Lord Chief Justice of a prosecution witness who retracts their deposition.
[20] Having reviewed the authorities Smellie J directed himself at 242 in Pauga to consider whether “a reasonable jury, properly directed, could safely come to a conclusion of guilt” on the basis of the admission. His Honour then helpfully set out a list of factors which should be considered when the Judge is summing-up in such a case. As Pauga is reported we will not reproduce the list here. We do note, however, two points which Smellie J suggested that the jury should be told:
[21] There was a verdict of guilty in Pauga and, during the ensuing appeal, this Court examined the issues discussed by Smellie J. Smellie J’s approach was endorsed in a judgment delivered by Casey J. The same authorities were reviewed. The Court emphasised the desirability of bringing home to the jury the inherent dangers of convicting solely on a confession.
[22] We can summarise the authorities by saying that if a case is left to the jury on a basis such as the present, it is necessary that the jury scrutinise very carefully all aspects of the case relating to both the circumstantial and the inherent reliability of the accused’s confession. The jury should find the accused guilty only if they are fully convinced the confession represents the truth. If a conviction is entered and there is an appeal, this Court must similarly scrutinise very carefully the reliability of the confession. The conviction should be quashed if, in all the circumstances, the Court is of the view that a reasonable jury could not regard the confession as having sufficient reliability to support a conviction. In such circumstances the verdict or verdicts of guilty should be regarded as unreasonable.
[23] Mr Eaton helpfully referred us to the authorities we have mentioned. Mr Lamprati did not suggest any different approach. We are in this case concerned not with a s347 application as was Smellie J in Pauga or the terms of a summing-up. Our focus (as in Pauga on appeal) is on s385(1)(a) of the Crimes Act and specifically on whether the verdicts in relation to O were unreasonable or not supported by the evidence. Mr Eaton rightly accepted that these two issues tend to merge in the present case and the ultimate focus is on the reasonableness of the verdicts. The essential point is whether the evidence constituted by the admissions could reasonably have been regarded as proving the appellant’s guilt beyond reasonable doubt. Using the formula suggested above, the question is whether a reasonable jury could, in all the circumstances, have been fully convinced of the truth of what the appellant told the police.
Were the verdicts in relation to O reasonable?
[24] Leaving aside for the moment count 4 where consent was not an issue, the Crown had to prove (a) that the appellant committed the necessary physical acts; (b) that O did not consent to them; and (c) that the appellant did not believe (on reasonable grounds in the rape case) that she consented. In present circumstances the first two ingredients were the key ones. Even if the jury was reasonably entitled to rely on the appellant’s admissions to prove the necessary physical acts, the further question arises whether they could similarly rely on the admissions to prove that O did not consent to those acts. Mr Eaton rightly submitted that the question whether the admissions were sufficiently cogent and credible to entitle the jury to convict upon them, notwithstanding the evidence given by O, required careful consideration of the circumstances in which the admissions came to be made, and also of the way in which they were made, as captured on the video recording. Mr Eaton also rightly argued that the appellant’s relatively prompt retraction of the admissions was a highly relevant dimension.
[25] The case presented at trial on behalf of the appellant was that the admissions were made by him specifically in order to get CYFS off O’s back. We agree that this explanation had an evidential foundation in the removal of both O and C from
the appellant’s home, shortly after C’s birth. CYFS intervened as a result of a complaint. From the day O and C were removed the appellant was denied access to his grandson, and had problems in maintaining contact with his daughter. He was distressed by this situation.
[26] When the appellant arrived at the Christchurch Police Station unannounced in the early hours of 26 September 2001, he had with him various CYFS papers setting out their views as to why O and C had been required to leave his address. The papers also specified various allegations which had been levelled against the appellant in relation to his conduct towards both O and C. It is therefore a reasonable inference that the admissions made by the appellant were linked to what was set out in the CYFS documents.
[27] Mr Eaton submitted that on any objective assessment the admissions lacked credibility and cogency. The appellant’s admission of sexual violation by rape was limited to an isolated act and he repeatedly identified it as the act of intercourse which had led to C’s conception. DNA tests later showed that proposition to be wrong. The appellant did not describe any surrounding circumstances of the single act of intercourse which he was purporting to admit with his daughter.
[28] When addressing the senior sergeant, who first saw him at the Police Station, the appellant directed the senior sergeant’s attention towards a document amongst the CYFS papers and said “I want to get this sorted out. I want all this cleared up so she can go home. If I confess to it all will that be the end of it?” The appellant’s use of the conditional “if” should be noted. Furthermore the proposition that if the appellant confessed to sexually abusing his daughter that would be the end of it, and she and her baby would be allowed to go back to the appellant’s home, is so bizarre as to suggest that the appellant cannot have been thinking rationally at that time. That must, in our view, seriously affect whether it was reasonable to rely on the appellant’s statements as the only evidence probative of the offending which he was alleged to have committed on O. We make that observation both in relation to the physical acts involved and in relation to the appellant’s acceptance that O had not consented to those acts.
[29] While it might just be possible to regard the verdicts as reasonably based in relation to the physical acts, we do not consider this can be said in relation to the question of consent. Such external evidence as there was, ie. from the witnesses who described acts which they had seen between the appellant and O, gave no foundation for any suggestion that the acts lacked O’s consent. Indeed, if anything, the converse applied. The reference made by the appellant’s second wife to the fact that he and O shared a bed, without any apparent demur on O’s part, must objectively leave a real doubt as to whether the appellant was correct when he told the police he had forced himself on O.
[30] Although there was no express criticism of the summing-up in this respect, we note that the Judge did not invite the jury to take the extra special care and be very very sure of guilt before entering a conviction, as Smellie J suggested in Pauga. That suggestion was implicitly approved by this Court and we too consider it to be appropriate, at least in a case like the present with its most unusual combination of features.
[31] All in all, when we bear in mind the circumstances in which the admissions were made, their prompt retraction, the fact that O expressly denied on oath that any offending had taken place, and the total illogicality of the appellant’s suggestion that admitting the rape of his daughter would somewhat enable her and her young baby to return to his home, we are left with the view that the verdicts of guilty on counts 5 and 6 (indecent assault when O was over 16 years and sexual violation by rape) cannot reasonably be regarded as soundly based. We think this is one of those comparatively rare cases in which it must be said that the verdicts of guilty on those counts should be set aside on the ground that they are unreasonable.
[32] In coming to that view, we have carefully considered Mr Lamprati’s submissions for the Crown. He submitted that the notion a man “apparently in full possession of his senses” would voluntarily go to a police station and say “I’ve been fucking my daughter. I am the father of my daughter’s child and it’s genuine. Its been going on for years” merely to get CYFS to relent and cease “interfering” and allow him access to his daughter’s child, would have struck the jury as so far-fetched as to be unacceptable. While at one level Mr Lamprati’s submission is undoubtedly
correct, the problem, as we see it, with the submission is that it tends to damnify the premise on which it rests. In the light of the illogicality of the appellant’s approach, which we have already noted and which was emphasised by Mr Lamprati, we do not consider that the appellant can be said to have been “apparently in full possession of his senses”. The converse is the stronger inference. The rest of Mr Lamprati’s submissions, based as they were to some extent on this primary submission, have not persuaded us to the view that the verdicts on counts 5 and 6 can reasonably be supported.
[33] That being our view, it is unnecessary for us to discuss in similar detail all the other grounds of appeal so far as they impact on the convictions relating to O. We must, however, address whether the verdict on count 4 (indecent assault when O was under 16) can be sustained. On that count it was not necessary for the Crown to prove that the appellant’s conduct lacked O’s consent. We do not, however, propose at this point to examine the reasonableness of the verdict on count 4 any further, because we are of the view that there is an independent reason why the verdicts on counts 5 and 6 cannot stand and that reason extends to count 4 as well. We will, at a subsequent stage in this judgment, consider whether there should be a new trial on count 4, it being implicit in what we have said in relation to counts 5 and 6 that there should not be any retrial in respect of those counts.
Hearsay
[34] The hearsay issue derives from the evidence of O’s boyfriend, J and his sister. In his evidence, which was designed to recount what T had said to him about her father’s conduct with her, J also spoke of what T had said in relation to her father’s abuse of O. This happened twice. The same thing happened, albeit only once, when the sister gave her evidence. It was common ground (Mr Lamprati rightly conceding the point) that this was inadmissible hearsay. It went beyond the proper scope of recent complaint evidence regarding T. Mr Lamprati’s argument was that in the circumstances there was no risk of a miscarriage of justice and this Court should not therefore intervene.
[35] Mr Eaton argued the converse, for reasons which we accept. The evidence in question improperly supported the Crown’s case against the appellant in relation to
O. Her case was difficult enough as it was without this additional problem. The matter was not addressed by the Judge with a direction to the jury firmly telling them to disregard the evidence. The Judge did not refer to the matter either at the time or in his summing up. In the particular circumstances of this case any impermissible support for the Crown’s case gives rise, in our view, to a real risk of a miscarriage of justice. This is an independent ground for quashing the verdicts on counts 5 and 6 and a ground in itself for quashing the verdict on count 4. When the marginal evidentiary basis for count 4 is added, we consider that in respect of that count, as well as counts 5 and 6, the appellant has shown grounds upon which his appeal should be allowed. Properly, there was no attempt by the Crown to invoke the proviso to s385(1)(a) of the Crimes Act.
[36] For these reasons we consider the appeal in relation to the verdicts on all the counts involving O must succeed. We will consider what formal consequences there should be after examining the appeal so far as it relates to T.
The case in relation to T
[37] Mr Eaton submitted that although the matters which we have discussed to this point in our judgment related specifically to the counts involving O, there was a real risk, in the overall circumstances of the case, that the problems relating to O influenced the jury’s verdicts when they were considering counts 2 and 3 relating to T (indecent assault when T was over 16 and sexual violation by rape). It will be recalled that in relation to count 1 (indecent assault on T when she was under 16), the jury were unable to reach a verdict. Mr Eaton pointed out that T’s complaints of indecent assault and sexual violation by rape were uncorroborated. He suggested that T’s description of the rape lacked consistency. Counsel also argued that such was the impact of the Crown calling O and then taking her evidence to pieces by way of cross-examination, coupled with the hearsay point, that the jury, in the absence of a very clear and firm direction, were likely to have fallen into the trap of
taking a global view of the case. Mr Eaton argued that the Judge’s directions in this respect were inadequate.
[38] Mr Lamprati argued that the Judge’s directions clearly directed the jury to consider each charge separately and to determine each charge according to the evidence in relation to that charge alone. During the course of oral argument, the question of severance arose. There was no application for severance of the counts relating to T from those relating to O. The Court indicated that this may well have been a case in which severance was both appropriate and desirable. We confirm that view, particularly in the light of the major difficulties in the case so far as it related to O. There was not and could not be any suggestion that the case was such that the evidence of O was admissible in relation to T and vice versa. In short, it was not a similar facts case. It was a case in which the evidence which related to the appellant’s alleged offending with O could not be used to support the allegation that he had offended also with T and vice versa. If there was not to be severance it was essential that the Judge should make this point clearly and firmly to the jury. It was also necessary that the summing-up, by express direction or structure or both, should assist the jury in their potentially difficult task of keeping the various aspects of the evidence within the relevant bounds for each aspect.
[39] The Judge’s direction on this topic was given towards the beginning of his summing-up. It was in these terms:
The first thing I have to say about that is it contains six charges. Although all of the charges arise from a similar set of facts, I emphasise that each of the charges or counts and I will use that term interchangeably, a charge or a count is the same thing, each of the counts are separate charges and I think again as one of the counsel said yesterday think of this really as six trials within one. I think it may have been [counsel for the accused] who said that it is really three trials in relation to [O] and three trials in relation to [T] all being heard together. For obvious reasons of common sense and efficiency, the charges are being tried together but the evidence as it relates to each of the charges and to each of the elements of the charge that I will come to in a moment, each of those must be considered by you separately. So you really have to take each one separately and say what is the evidence that we have got in relation to this charge and make your decision on that alone. Not withstanding the familiarity of the factual background to each of these charges, it would be quite wrong for you to bolster up the case against the accused on one charge by using evidence which relates only to another or to reason that because you find him guilty on one charge then he must be guilty on the others or any other one of them and the converse applies. Because
you might find him not guilty on one charge does not mean that you can jump to the conclusion he is not guilty on the others so you really have to compartmentalise each of these and look at them separately and deal with the evidence which relates to each of them separately. (our emphasis)
[40] For completeness we should also refer to what the Judge said later in his summing-up when discussing the Crown case:
[Counsel for the Crown] said that the key issue here is credibility and the Crown says that you should separate the two complainants and deal with them separately and deal with the charges in relation to each of them separately.
[41] We comment in relation to the latter passage that a lay jury might not necessarily understand that a direction to consider the complainants separately meant that the evidence of one complainant was not relevant to the allegations being made by the other. We say this not as a criticism of what the Judge said at this later stage of the summing-up, but rather to make the point that what he did say could not be regarded as curing any deficiency that might be found in the earlier and substantive passage.
[42] There are two introductory points which we make about the Judge’s primary direction. The first is that criticisms of directions in summings-up should generally be approached in a broad and practical way without undue emphasis on the niceties of language. The impression which a challenged direction is likely to have made on the jury in the context of the trial and summing-up as a whole, must be fully taken into account. On the other hand, the present was a case with particular difficulty in relation to O. Both for that reason and generally in cases of this kind, there was a particular need for the jury to appreciate clearly what evidence was available for their use on each count and what evidence was not.
[43] In his direction the Judge emphasised initially the need for separate consideration of individual counts. As we have already noted, that direction of itself did not give the jury any guidance as to what evidence they could and could not use in that separate consideration process. When the Judge addressed that topic in the first of the passages we have emphasised, he left it in substance to the jury to determine what evidence they had “got” in relation to the charge they were considering. To tell the jury to make its decision “on that [evidence] alone”, was not
enough when the jury itself had been left to determine what evidence it considered relevant to that charge. The Judge’s direction did not bring out that some logically relevant evidence was not legally admissible. The lay mind, in the absence of clear and firm guidance, was not likely to know that some evidence which might be seen as logically relevant was not legally admissible, and should therefore not be relied on. Although the direction has the superficial appearance of adequacy, when it is analysed it actually leaves the jury to determine what evidence could be used on each count. This was not satisfactory and must, in our view, give rise to a real risk that the evidence relating to O might have been used to support the allegations relating to T.
[44] Mr Lamprati suggested, in his oral argument, that the reverse was more likely, ie. that T’s evidence might have been used to bolster the case as it related to
O. That may indeed be so, but we are still left with the view that there was a real risk of an improperly global use of the evidence. A direction to consider counts separately will only remove that risk if there is a clear direction to use only the admissible evidence when considering a particular count. We are therefore of the view that Mr Eaton’s submissions on this point are valid.
[45] There is also in relation to T the point that, for reasons which are difficult to discern, the jury was unable to agree on count 1 yet found the appellant guilty on counts 2 and 3. Although this point was not made the subject of a specific submission, there is an apparent inconsistency in the jury finding the two counts which involved proof of lack of consent established but being undecided on a count which did not require such proof. The apparent inconsistency is particularly stark as between counts 1 and 2. There is no apparent reason for the jury to be sure of T’s honesty and reliability in relation to events when she was over 16 but not for similar events when she was under that age.
[46] This dimension adds to the unease which we have in relation to the failure of the summing-up to point out to the jury the need for careful isolation of evidence and to give them appropriate assistance in performing that task. All the Judge needed to have said was that the evidence relating to O should not be used, in any shape or form, when the jury were considering the counts in relation to T and vice versa. In a
case like the present where there had been no severance, the Judge should have told the jury exactly what the available evidence was in relation to each count and each complainant; and, if some evidence was available across counts and complainants, that too should have been identified. Only by that means could the accused have been protected from the inherent dangers of hearing together counts where cross use of evidence was not permissible. The failure of the summing-up in this respect, and the apparent inconsistency of the jury’s conclusions, are not logically related. But overall we consider the verdicts in relation to T cannot be regarded as safely based.
[47] It remains to determine what conclusions should follow the necessary quashing of the convictions on counts 2 to 6 inclusive. As earlier indicated, there should be no order for a retrial on counts 5 and 6 because the evidence cannot reasonably support a conviction on those counts. We must next address the point deferred in para [33] above. As lack of consent is not an ingredient of count 4, our concerns about that dimension in relation to counts 5 and 6 do not arise. It is implicit in what we said in para [29] that the appellant’s confession regarding O might possibly be viewed as providing reasonable support for a conviction on count 4. The evidentiary position is, we think, marginal on that count. In that situation, with O denying that any offending took place with her, we do not consider that the public interest in other respects reasonably justifies a new trial simply on count 4. Any such trial would have to be severed from any retrial concerning T. Ordinarily we would leave it to the Crown to make the ultimate decision. But here we propose to exercise our discretion and direct that no retrial take place on count 4.
[48] The position in relation to counts 2 and 3 is straightforward. Mr Eaton properly indicated he could not advance any persuasive reason why there should not be a retrial on those counts concerning T. That retrial can no doubt be combined with the retrial necessary on count 1 on which the jury were unable to agree.
Conclusion/formal orders
[49] For the reasons given the appeal is allowed. The convictions on counts 2 to 6 inclusive are quashed. We order a retrial only on counts 2 and 3.
Solicitors:
White Fox, Christchurch for Appellant Crown Law Office, Wellington
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2003/350.html
