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R v Sa'afi CA225/03 [2003] NZCA 367 (3 December 2003)

Last Updated: 1 January 2019

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA225/03

THE QUEEN

v

SOAPASI SA'AFI

Hearing: 27 November 2003 Coram: Gault P
Goddard J Rodney Hansen J

Appearances: M Tuilotolava for Appellant
T A Simmonds for Crown Judgment: 3 December 2003

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1] The appellant was convicted of kidnapping following a jury trial in the District Court at Auckland. On 17 June 2003 he was sentenced to two years and ten months imprisonment. This appeal is against conviction and sentence.

The facts

[2] The appellant lived in West Auckland. The complainant is his wife’s sister, and she came to the appellant’s house at Kelston during the evening of 21 June 2002

R V SOAPASI SA'AFI CA CA225/03 [3 December 2003]

to have a meal. At around 2.00am the next morning, the complainant decided to return home. She declined offers to take the car herself. The appellant began to drive her even though he had been drinking quite heavily throughout the evening. Instead of taking the victim to her house in Waterview, however, the appellant drove to an isolated location at Muriwai Beach. The victim repeatedly asked him to take her home, but the appellant ignored her.

[3] The appellant denied any knowledge of the incident, saying he could not remember anything from the time the victim got into his car until he “woke up” at Muriwai. He was charged with kidnapping, that is unlawfully carrying off the complainant without her consent with intent to cause her to be confined. The appellant faced the further charge of assault with intent to sexually violate his victim. The jury could not agree on a verdict in respect of that. A retrial has been ordered on that second count and the evidence relating to that will form no part of our considerations on appeal.

Sentencing

[4] The sentencing judge identified a number of aggravating features about the kidnapping. The journey took a long time, and the victim was forced to hide among the trees in the dark and cold night after she escaped from the car, which had a severe impact on her. The appellant showed a lack of remorse, and his victim was forced to give evidence and endure cross-examination at the trial. The Judge also referred to the breach of trust by a family member exhibited by the appellant’s actions. He did not, he said, take into account the alleged assault.

[5] The only factors in the appellant’s favour, according to the Judge, were that he had no previous convictions or record of violence, and that “minimal physical violence was used” in the offending. A sentence of two years and ten months imprisonment was seen as appropriate.

Appeal against conviction

[6] The appeal against conviction was advanced on the basis that there has been a miscarriage of justice as a result of the Judge’s summing up, and his treatment of defence counsel during the course of the trial. Counsel for the appellant referred to a number of instances when the Judge interrupted counsel during cross-examination. It was submitted that the effect of this was to paint counsel in a negative light in the eyes of the jury, to undermine the effectiveness of the cross-examination and to demonstrate that the Judge was biased towards the complainant and the Crown case.

[7] It was submitted that it is inappropriate for a Judge to criticise defence counsel in this manner.

[8] The second ground for the appellant also related to the summing up. It was submitted that the Judge erred in failing to fairly put the defence case to the jury. Counsel argued that the summing up was one-sided, and emphasised the Crown case to the detriment of the defence. The amount of time dedicated to summarising the Crown’s arguments was significantly more than that given to the defence case.

[9] Crown counsel submitted that the issues raised by the appellant cannot, individually or collectively, amount to a substantial miscarriage of justice pursuant to s385(1) of the Crimes Act. Most of the interruptions by the Judge were to clarify questions asked by counsel to ensure that the complainant understood the questions. Both the complainant and the appellant speak English as a second language, and the complainant was not assisted by an interpreter in giving evidence. The jury would have understood the reason for the clarifications, and in any event it cannot be said that the interruptions caused the jury to become biased against the appellant, because there was a hung jury on the assault charge.

[10] Counsel accepted that the Judge should not have referred to a particular defence submission as “ludicrous” but submitted that a trial Judge is entitled to express his or her own view of the facts, provided the jury is directed that their conclusions are the decisive ones. In this case, the Judge repeatedly emphasised the role of the jury as the “sole Judges of facts”. In relation to the rest of the summing
up, Crown counsel submitted that the Judge traversed the major points of the defence case. There is no requirement that every point made by counsel be covered. No miscarriage of justice could be said to have resulted from the summing up.

Appeal against sentence

[11] The sentence appeal was advanced on the basis that the sentence of two years and ten months was manifestly excessive in the circumstances. It was submitted that the duration of the kidnapping was only the length of time it took to drive to the beach, plus a short period of interaction inside the parked car. The time the complainant spent hiding was outside the control of the appellant. Counsel also argued that the appellant’s choice to plead not guilty and defend himself at trial cannot be counted as an aggravating factor. Given that the appellant is the sole breadwinner in a family with seven children, and has no previous convictions for violent offending, a sentence of no more than two years with leave to apply for home detention would have been more appropriate.

[12] The Crown’s position is that the sentence cannot be said to be manifestly excessive. The Judge correctly identified the aggravating features in the offending, and in addition there was the fact that the appellant had told the complainant, on arrival at Muriwai, that “this is the place where people get killed and dump the body”.

Decision

[13] On the appeal against conviction we deal first with the contention that interventions by the Judge in the course of counsel’s cross-examination of the complainant were unfair and prejudicial to the defence.

[14] The complainant’s evidence-in-chief was led by Crown counsel during which there were several interventions by the trial Judge. The evidence was directed to both the car journey to Muriwai and to events in the car at Muriwai and thereafter. The cross-examination was lengthy. The transcript occupies some 22 pages. There were, on counsel’s count, some 19 “incidents of intervention” by the Judge. We
have examined them. A number were innocuous, representing questions by the Judge to bring out matters of evidence such as “what’s her name?” and “who had eaten?”. Three arose from objections raised by Crown counsel. Quite a number indicate an attempt by the Judge to ensure the witness understood what she was being asked. Counsel submitted this showed the Judge was over-protective of the witness. But we do not consider these interventions went beyond the exercise of control over the trial by the Judge.

[15] A number of interventions reflected impatience by the Judge at the persistence with which counsel put propositions to the witness instead of asking questions. The remedy for that was in counsel’s hands.

[16] One intervention arose when counsel commenced a question with an indication of what someone else would say. The Judge asked if that other person was to be called as a witness. That was entirely appropriate.

[17] Two interventions occurred when counsel phrased questions seeking to have the witness give evidence of what was in the appellant’s mind.

[18] An intervention involved an enquiry as to the relevance of a line of questions directed to background difficulties in the relationship between the appellant and the complainant’s family in respect of a financial transaction. Counsel considered this unfairly constrained her testing of the credibility of the witness.

[19] Two of the interventions counsel found hurtful. They were directed to the fact that both the complainant and counsel were of Polynesian origin. By reference to the well recognised penchant of Pacific Islanders to attempt to answer questions in English in strict grammatical terms such that the answers may appear ambiguous, the Judge chided counsel with “you of all people ought to know ...”. That was unnecessary, though in each case a more appropriately phrased intervention would have been quite justified.

[20] We have considered the cumulative impact of these interventions in the context of the trial and the essential issues, particularly in relation to the charge to
which the present appeal relates. We are satisfied they would not have prejudiced the appellant. Certainly they do not approach in seriousness those held in the past to have exceeded the proper role of the trial Judge in this respect as summarised in R v H (2002) 19 CRNZ 518 (paras [33] and [34]). This case does not approach in seriousness cases such as R v Fotu [1995] 3 NZLR 129 and R v Loumoli [1995] 2 NZLR 656.

[21] The transcript in this case reflects an active Judge, somewhat impatient at times, though not without some cause. His interventions do not give concern that he was influencing the outcome of the cross-examination or of the trial.

[22] The related point of unfairness was the dismissal by the Judge in his summing up of a point defence counsel had made as “ludicrous”. The point was made in respect of the second count and therefore is not of immediate relevance to the present appeal. We comment, however, that the point was without any support in the evidence, was speculative, and untenable on the appellant’s own evidence. Nevertheless there remains the justified complaint of counsel that comments from a judge in the course of a summing up, where they denigrate counsel, can be taken to reflect prejudicially upon the accused’s case and give rise to a sense of injustice. In this case, because of the verdict on the second count, we can be satisfied that no injustice in fact was caused.

[23] The next ground was that the summing up was unfairly slanted against the defence overall, and in particular did not fairly put the defence case to the jury. Again it is important to focus on the trial as it related to the charge of kidnapping. The defence to that was summarised by the Judge in his summing up in these terms:

What is the defence? The defence is that the accused was at the relevant time in a situation of a black out where he was not in a position to form any specific intent to do any of the things the Crown alleges. That as far as Count 1 is concerned he was not in a state of mind where he could have formed the intent of confining her in his car against her wishes as is alleged by the Crown.

...
The accused says that this is not the first time it has happened. Last time it happened was this trip to Maraetai. He has given you evidence in regard to that; to a certain extent that has been confirmed. As to the incident that has been confirmed by the complainant. He says that when he was in Tonga, we do not know when, a similar situation happened when his aunt sent him out to have a shower and the next thing he realised he was wandering around the village naked and there was a film involving Arnold Schwarzenegger going on and the neighbour found him in that particular situation.

And then it is generally alleged by him that whenever he tends to drink too much he seems to get into a state of black out and that he then has no memory whatsoever of what he has done and so he says he couldn’t possibly have the intention to do the things of which he has got no knowledge.

That is basically his defence. Now remember he has got no onus on him to prove any of those things he has asserted in his defence. It is for the Crown to prove that he in fact had specific ability to form an intent and did in fact act with full intent on his part. That is for you to decide.

[24] The difficulty for the defence was that it was accepted that it was not a situation of automatism and the appellant had driven, apparently well enough, to Muriwai. That he could not subsequently remember the drive was not the same thing as not intending at the time to take his sister-in-law where she did not want to go.

[25] The brief passage in the summing up accurately set out what the defence were inviting the jury to find. Although the Judge did not summarise the evidence of the two prior incidents of “black out” more extensively, the jury would have been in no doubt of the case for the defence. That it was stated succinctly does not mean the defence was not fairly put to the jury. The Judge did go on to refer to some of the evidence pointing against the defence claim, but that was a fair reflection of the evidence.

[26] We have viewed the summing up as a whole. We are satisfied that it reflects rather the strength of the case against the appellant than any bias on the part of the Judge.

[27] The appeal against conviction is dismissed.
[28] The appeal against sentence is that for this kidnapping the sentence of imprisonment for two years ten months is excessive.

[29] While the Judge rejected the invitation of Crown counsel to take into account the facts alleged to indicate a sexual motivation for the kidnapping, he left the impression that he may not have done so by stating in his sentencing remarks that in view of his sentence a further trial on the other charge may not be regarded as necessary.

[30] This is indicated also by his references to what he considered to be aggravating features of the offending. He mentioned the length of time the complainant’s ordeal lasted. He saw that as extending for the period she hid after leaving the appellant’s car. But the reason for hiding was related to the assault charge and claimed fear of sexual attack by the appellant.

[31] The Judge also referred as an aggravating feature to the appellant’s lack of remorse and the fact that he made the complainant give evidence against him. Neither can be correctly categorised as an aggravating factor. They negate what might otherwise be mitigating factors but an accused cannot be punished for defending charges against him. And in this trial the appellant avoided conviction on one charge.

[32] The offence for which the appellant was to be sentenced was that of driving his sister-in-law to Muriwai against her consent with a view to discussing a financial matter that had been in dispute between their respective families. Nothing more was proved against him beyond reasonable doubt. He used no violence in doing this, although he kept her in the car when she first wanted to be taken home and later wished to get out. Understandably he frightened her and took her a distance from her home. He was on his own account heavily intoxicated.

[33] He was a disqualified driver with a long record of alcohol related driving offences. On the other hand he has no previous convictions for offences against the person.
[34] The appellant is 35 years old. He is married with seven children. He has a stable marriage. He has a positive employment record seemingly unaffected by his alcohol abuse. His current employer was reported as finding him reliable, hard- working and conscientious. He must be entitled to call in aid that record.

[35] The matter seems to be attributable to alcohol. It is only if the appellant accepts that and takes advantage of assistance that will be available to him that further and more serious offending will be avoided. That can be addressed in conjunction with a lesser sentence than that imposed.

[36] We are persuaded that the culpability of the appellant’s proved conduct did call for a sentence of imprisonment. But in the circumstances we consider that a sentence of 18 months would have constituted a sufficient response. We reach that view after considering this case against the decisions in R v Gurnick (CA287/02, judgment 23 October 2002), which was considered and rightly distinguished by the Judge, R v Wharton (CA374/02, judgment 27 March 2003), R v Gutsell (CA301/95, judgment 28 August 1995) and R v Reihana-Ruka (CA449/02 judgment 5 June 2003). None of those cases is close to this one on the facts but they indicate the range of sentences for kidnapping and relevant considerations.

[37] Accordingly the appeal against sentence is allowed. The sentence of imprisonment for two years and ten months is quashed and there is substituted a sentence of 18 months imprisonment. The sentence is to be subject to the standard conditions prescribed under s14(1) of the Parole Act 2002 for the period until the expiry of the sentence.

[38] We grant leave to apply for home detention.

Solicitors:

Ferguson Tuilotolava, Auckland, for Appellant Crown Solicitor, Auckland